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Full text of "North Carolina Register v.8 no. 13 (10/1/1993)"

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RECEIVED 



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OCT 6 1993 
LAW LIBRARY 



The 
NORTH CAROLINA 

REGISTER 



IN THIS ISSUE 



GENERAL STATUTES 



EXECUTIVE ORDERS 



PROPOSED RULES 
Agriculture 

Environment, Health, and Natural Resources 
Human Resources 
Insurance 

Landscape Architects 
Opticians, Board of 
State Personnel 



TST'l 



LIST OF RULES CODHTED 



RRC OBJECTIONS 



RULES INVALIDATED BY JUDICIAL DECISION 



CONTESTED CASE DECISIONS 



ISSUE DATE: October 1, 1993 



Volume 8 • Issue 13 • Pages 1185 - 1307 



INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODE 



NORTH CAROLINA REGISTER 



TEMPORARY RULES 



The North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and notices of 
public hearings filed under G.S. 150B-21.2 must be published in 
the Register. The Register will typically comprise approximately 
fifty pages per issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription 
at a cost of one hundred and five dollars ($105.00) for 24 issues. 
Individual issues may be purchased for eight dollars (S8.00). 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings, 
P. 0. Drawer 27447, Raleigh. N. C. 27611-7447. 



Under certain emergency conditions, agencies may issue 
temporary rules. Within 24 hours of submission to OAH, the 
Codifier of Rules must review the agency's written statement of 
findings of need for the temporary rule pursuant to the provisions in 
G.S. 150B-21.1. If the Codifier determines that the findings meet 
the criteria in G.S. 150B-21.1, the rule is entered into the NCAC. If 
the Codifier determines that the findings do not meet the criteria, 
the rule is returned to the agency. The agency may supplement its 
findings and resubmit the temporary rule for an additional review 
or the agency may respond that it will remain with its initial 
position. The Codifier, thereafter, will enter the rule into the 
NCAC. A temporary rule becomes effective either when the 
Codifier of Rules enters the rule in the Code or on the sixth 
business day after the agency resubmits the rule without change. 
The temporary rule is in effect for the period specified in the rule or 
180 days, whichever is less. An agency adopting a temporary rule 
must begin rule-making procedures on the permanent rule at the 
same time the temporary rule is filed with the Codifier. 



ADOPTION AMENDMENT, AND REPEAL OF 
RULES 



NORTH CAROLINA ADMINISTRATIVE CODE 



The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 
150B of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include the time and place of the public 
hearing (or instructions on how a member of the public may request 
a hearing); a statement of procedure for public comments; the text 
of the proposed rule or the statement of subject matter; the reason 
for the proposed action; a reference to the statutory authority for the 
action and the proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days 
must elapse following publication of the notice in the North 
Carolina Register before the agency may conduct the public 
hearing and at least 30 days must elapse before the agency can take 
action on the proposed rule. An agency may not adopt a rule that 
differs substantially from the proposed form published as part of 
the public notice, until the adopted version has been published in 
the North Carolina Register for an additional 30 day comment 
period. 

When final action is taken, the promulgating agency must file 
the rule with the Rules Review Commission (RRC). After approval 
by RRC, the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative 
Hearings for publication in the North Carolina Administrative Code 
(NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or 
before filing with OAH for publication in the NCAC. 



The North Carolina Administrative Code (NCAC) is a 
compilation and index of the administrative rules of 25 state 
agencies and 38 occupational licensing boards. The NCAC 
comprises approximately 15,000 letter size, single spaced pages of 
material of which approximately 35% of is changed annually. 
Compilation and publication of the NCAC is mandated by G.S. 
150B-21.18. 

The Code is divided into Titles and Chapters. Each state agency 
is assigned a separate title which is further broken down by 
chapters. Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of 
two dollars and 50 cents (S2.50) for 10 pages or less, 
plus fifteen cents (SO. 15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling in 
excess of 15,000 pages. It is supplemented monthly 
with replacement pages. A one year subscription to the 
full publication including supplements can be 
purchased for seven hundred and fifty dollars 
(S750.00). Individual volumes may also be purchased 
with supplement service. Renewal subscriptions for 
supplements to the initial publication are available. 

Requests for pages of rules or volumes of the NCAC should be 
directed to the Office of Administrative Hearings. 



CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, page 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to 
Volume 1, Issue 1, pages 101 through 201 of the North Carolina 
Register issued on April 1, 1986. 



FOR INFORMATION CONTACT: Office of 
Administrative Hearings, ATTN: Rules Division, P.O. 
Drawer 27447, Raleigh, North Carolina 27611-7447, (919) 
733-2678. 



NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 

(919) 733-2678 



Julian Mann III, 

Director 
James R. Scarcella Sr., 

Deputy Director 
Molly Masich, 

Director of APA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 



ISSUE CONTENTS 

I. GENERAL STATUTES 

Chapter 7A 1185 

Chapter 150B 1187 

n. EXECUTIVE ORDERS 

Executive Orders 24-27 1209 

in. PROPOSED RULES 

Agriculture 

Aquaculture 1212 

Plant Industry 1212 

Standards Division 1212 

Veterinary Division 1212 

Environment, Health, and 
Natural Resources 

Environmental Management .... 1254 
Wildlife Resources 1255 

Human Resources 

Facility Services 1215 

Mental Health, Developmental 
Disabilities and Substance Abuse 
Services 1217 

Insurance 
Actuarial Services Division .... 1249 
Engineering and Building 
Codes Division 1248 

Licensing Boards 

Landscape Architects 1256 

Opticians, Board of 1261 

State Personnel 
Office of State Personnel 1262 

IV. LIST OF RULES CODIFIED ... 1264 

V. RRC OBJECTIONS 1271 

VI. RULES INVALIDATED BY 

JUDICIAL DECISION 1273 

VII. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 1274 

Text of Selected Decisions 

90 DOJ 0353 1281 

92 HRC 0560 1287 

92 OSP 1715 1292 

93 DOJ 0844 1300 

VIII. CUMULATIVE INDEX 1305 



NORTH CAROLINA REGISTER 

Publication Schedule 
(July 1993 - May 1994) 



Volume 
and 
Issue 

Number 


Issue 
Date 


Last Day 

for 

Filing 


Last Day 
for Elec- 
tronic 
Filing 


Earliest 
Date for 
Public 
Hearing 
15 days 
from 
notice 


* End of 

Required 

Comment 

Period 

30 days 

from 

notice 


Last Day 

to Submit 

to RJRC 


** Earliest 

Effective 

Date 


8:7 


07/01/93 


06/10/93 


06/17/93 


07/16/93 


08/02/93 


08/20/93 


10/01/93 


8:8 


07/15/93 


06/23/93 


06/30/93 


07/30/93 


08/16/93 


08/20/93 


10/01/93 


8:9 


08/02/93 


07/12/93 


07/19/93 


08/17/93 


09/01/93 


09/20/93 


11/01/93 


8:10 


08/16/93 


07/26/93 


08/02/93 


08/31/93 


09/15/93 


09/20/93 


11/01/93 


8:11 


09/01/93 


08/11/93 


08/18/93 


09/16/93 


10/01/93 


10/20/93 


12/01/93 


8:12 


09/15/93 


08/24/93 


08/31/93 


09/30/93 


10/15/93 


10/20/93 


12/01/93 


8:13 


10/01/93 


09/10/93 


09/17/93 


10/18/93 


11/01/93 


11/22/93 


01/01/94 


8:14 


10/15/93 


09/24/93 


10/01/93 


11/01/93 


11/15/93 


11/22/93 


01/01/94 


8:15 


11/01/93 


10/11/93 


10/18/93 


11/16/93 


12/01/93 


12/20/93 


02/01/94 


8:16 


11/15/93 


10/22/93 


10/29/93 


11/30/93 


12/15/93 


12/20/93 


02/01/94 


8:17 


12/01/93 


11/05/93 


11/15/93 


12/16/93 


01/03/94 


01/20/94 


03/01/94 


8:18 


12/15/93 


11/24/93 


12/01/93 


12/30/93 


01/14/94 


01/20/94 


03/01/94 


8:19 


01/03/94 


12/08/93 


12/15/93 


01/18/94 


02/02/94 


02/21/94 


04/01/94 


8:20 


01/14/94 


12/21/93 


12/30/93 


01/31/94 


02/14/94 


02/21/94 


04/01/94 


8:21 


02/01/94 


01/10/94 


01/18/94 


02/16/94 


03/03/94 


03/21/94 


05/01/94 


8:22 


02/15/94 


01/25/94 


02/10/94 


03/02/94 


03/17/94 


03/21/94 


05/01/94 


8:23 


03/01/94 


02/08/94 


02/15/94 


03/16/94 


03/31/94 


04/20/94 


06/01/94 


8:24 


03/15/94 


02/22/94 


03/10/94 


03/30/94 


04/14/94 


04/20/94 


06/01/94 


9:1 


04/04/94 


03/11/94 


03/18/94 


04/19/94 


05/04/94 


05/20/94 


07/01/94 


9:2 


04/15/94 


03/24/94 


03/31/94 


05/02/94 


05/16/94 


05/20/94 


07/01/94 


9:3 


05/02/94 


04/11/94 


04/18/94 


05/17/94 


06/01/94 


06/20/94 


08/01/94 


9:4 


05/16/94 


04/25/94 


05/02/94 


05/31/94 


06/15/94 


06/20/94 


08/01/94 



Note: Time is computed according to the Rules of Civil Procedure, Rule 6. 

* An agency must accept comments for at least 30 days after the proposed text is published or until the date 
of any public hearing, whichever is longer. See G.S. 150B-21 .2(f) for adoption procedures. 

** The "Earliest Effective Date " is computed assuming that the agency follows the publication schedule above, 
that the Rules Review Commission approves the rule at the next calendar month meeting after submission, and 
that RRC delivers the rule to the Codifler of Rules five (5) business days before the 1st day of the next calendar 
month. 



Revised 07/93 



GENERAL STATUTES OF NORTH CAROLINA 



CHAPTER 7A, SUBCHAPTER XII, ARTICLE 60 
OFFICE OF ADMINISTRATIVE HEARINGS 



[The following excerpt contains the statutory provisions that govern the Office of Administrative 
Hearings as amended October 1, 1993.] 



§ 7 A- 750. Creation; status; purpose. — There is 
created an Office of Administrative Hearings. The 
Office of Administrative Hearings is an indepen- 
dent, quasi-judicial agency under Article III, Sec. 
1 1 of the Constitution and, in accordance with 
Article IV, Sec. 3 of the Constitution, has such 
judicial powers as may be reasonably necessary as 
an incident to the accomplishment of the purposes 
for which it is created. The Office of Administra- 
tive Hearings is established to provide a source of 
independent hearing officers to preside in adminis- 
trative cases and thereby prevent the commingling 
of legislative, executive, and judicial functions in 
the administrative process. It shall also maintain 
dockets and records of contested cases and shall 
codify and publish all administrative rules. 
§ 7A-75 1 . Agency head; powers and duties. — 
The head of the Office of Administrative Hearings 
is the Chief Administrative Law Judge. He shall 
serve as Director and have the powers and duties 
conferred on him by this Chapter and the Constitu- 
tion and laws of this State. His salary shall be 
fixed by the General Assembly in the Current 
Operations Appropriations Act. In lieu of merit 
and other increment raises, the Chief Administra- 
tive Law Judge shall receive longevity pay on the 
same basis as is provided to employees of the State 
who are subject to the State Personnel Act. 
§ 7A-752. Chief Administrative Law Judge 

appointments; vacancy. — The Chief Adminis- 
trative Law Judge of the Office of Administrative 
Hearings shall be appointed by the Chief Justice 
for a term of office of four years. The first Chief 
Administrative Law Judge shall be appointed as 
soon as practicable for a term to begin on the day 
of his appointment and to end on June 30, 1989. 
Successors to the first Chief Administrative Law 
Judge shall be appointed for a term to begin on 
July 1 of the year the preceding term ends and to 
end on June 30 four years later. A Chief Admin- 
istrative Law Judge may continue to serve beyond 
his term until his successor is duly appointed and 
sworn, but any holdover shall not affect the expi- 
ration date of the succeeding term. 
The Chief Administrative Law Judge shall desig- 
nate one administrative law judge as senior admin- 
istrative law judge. The senior administrative law 



judge may perform the duties of Chief Administra- 
tive Law Judge if the Chief Administrative Law 
Judge is absent or unable to serve temporarily for 
any reason. 

§ 7A-753. Additional Administrative Law 

Judges; appointment; specialization. — The Chief 
Administrative Law Judge shall appoint additional 
administrative law judges to serve in the Office of 
Administrative Hearings in such numbers as the 
General Assembly provides. No person shall be 
appointed or designated an administrative law 
judge except as provided in this Article. 

The Chief Administrative Law Judge may desig- 
nate certain administrative law judges as having 
the experience and expertise to preside at specific 
types of contested cases and assign only these 
designated administrative law judges to preside at 
those cases. 

§ 7A-754. Qualifications; standards of conduct; 
removal . — Only persons duly authorized to 
practice law in the General Court of Justice shall 
be eligible for appointment as the Director and 
chief administrative law judge or as an administra- 
tive law judge in the Office of Administrative 
Hearings. Neither the chief administrative law 
judge nor any administrative law judge may 
engage in the private practice of law as defined in 
G.S. 84-2.1 while in office; violation of this 
provision shall be grounds for removal. Each 
administrative law judge shall take the oaths 
required by Chapter 1 1 of the General Statutes. An 
administrative law judge may be removed from 
office by the Director of the Office of Administra- 
tive Hearings for just cause, as that term is used in 
G.S. 126-35. 

§ 7A-755. Expenses reimbursed. — The Chief 
Administrative Law Judge of the Office of Admin- 
istrative Hearings and all administrative law judges 
shall be reimbursed for travel and subsistence 
expenses at the rates allowed to State officers and 
employees by G.S. 138-6(a). 

§ 7A-756. Power to administer oaths and issue 
subpoenas. — The chief administrative law judge 
and all administrative law judges in the Office of 
Administrative Hearings may, in connection with 
any pending or potential contested case under 
Chapter 150B: 
(1) Administer oaths and affirmations; 



8:13 



NORTH CAROLINA REGISTER 



October 1, 1993 



1185 



GENERAL STATUTES OF NORTH CAROLINA 



(2) Sign and issue subpoenas in the name of the 
Office of Administrative Hearings requiring atten- 
dance and giving of testimony by witnesses and the 
production of books, papers, and other documenta- 
ry evidence; and 

(3) Apply to the General Court of Justice, Superi- 
or Court Division, for any order necessary to 
enforce the powers conferred in this Article. 

§ 7A-757. Temporary administrative law judges; 
appointments; powers and standards; fees. — When 
regularly appointed administrative law judges are 
unavailable, the Chief Administrative Law Judge 
of the Office of Administrative Hearings may 
contract with qualified individuals to serve as 
administrative law judges for specific assignments. 
A temporary administrative law judge shall have 
the same powers and adhere to the same standards 
as a regular administrative law judge in the con- 
duct of a hearing. A temporary administrative law 
judge shall not be considered a State employee by 
virtue of this assignment, and shall be remunerated 
for his service at a rate not to exceed three hun- 
dred dollars ($300.00) per day and shall be reim- 
bursed for travel and subsistence expenses at the 
rate allowed to State officers and employees by 
G.S. 138-6(a). The Chief Administrative Law 
Judge may also designate a full-time State employ- 
ee to serve as a temporary administrative law 
judge with the consent of the employee and his 
supervisor; however, the employee is not entitled 
to any additional pay for this service. 
§ 7A-758. Availability of administrative law 
judge to exempt agencies. — The Chief Adminis- 
trative Law Judge of the Office of Administrative 
Hearings may, upon request of the head of the 
agency, provide an administrative law judge to 
preside at hearings of public bodies not otherwise 
authorized or required by statute to utilize an 
administrative law judge from the Office of Ad- 
ministrative Hearings including, but not limited to. 
State agencies exempt from the provisions of 
Chapter 150B, municipal corporations or other 
subdivisions of the State, and agencies of such 
subdivisions. 

§ 7A-759. Role as deferral agency. — (a) The 
Office of Administrative Hearings is designated to 
serve as the State's deferral agency for cases 
deferred by the Equal Employment Opportunity 
Commission to the Office of Administrative Hear- 
ings as provided in Section 706 of the Civil Rights 
Act of 1964, 42 U.S.C. § 2000e-5, e* the Age 
Discrimination in Employment Act, 29 U.S.C. § 
621 et seq., and the Americans with Disabilities 
Act, 42 U.S.C. 1 12101 et seq^ for charges filed 
by State or local government employees covered 



under Chapter 126 of the Genera] Statutes and 
shall have all of the powers and authority neces- 
sary to function as a deferral agency. 

(b) The Chief Administrative Law Judge is 
authorized and directed to contract with the Equal 
Employment Opportunity Commission for the 
Office of Administrative Hearings to serve as a 
deferral agency and to establish and maintain a 
Civil Rights Division in the Office of Administra- 
tive Hearings to carry out the functions of a 
deferral agency. 

(c) In investigating charges an employee of the 
Civil Rights Division of the Office of Administra- 
tive Hearings specifically designated by an order 
of the Chief Administrative Law Judge filed in the 
pending case may administer oaths and affirma- 
tions. 

(d) Any charge not resolved by informal methods 
of conference, conciliation or persuasion shall be 
heard as a contested case as provided in Article 3 
of Chapter 150B of the General Statutes. 

(e) Notwithstanding G.S. 150B-34 and G.S. 
150B-36, an order entered by an administrative 
law judge after a contested case hearing on the 
merits of a deferred charge is a final agency 
decision and is binding on the parties. The admin- 
istrative law judge may order whatever remedial 
action is appropriate to give full relief consistent 
with the requirements of federal statutes or regula- 
tions. 

(f) In addition to the authority vested in G.S. 
7A-756 and G.S. 150B-33, an administrative law 
judge may monitor compliance with any negotiated 
settlement, conciliation agreement or order entered 
in a deferred case. 

(g) The standards of confidentiality established 
by federal statute or regulation for discrimination 
charges shall apply to deferred cases investigated 
or heard by the Office of Administrative Hearings. 

(h) Nothing in this section shall be construed as 
limiting the authority or right of any federal 
agency to act under any federal statute or regula- 
tion. 



1186 



8:13 



NORTH CAROLINA REGISTER 



October 1, 1993 



GENERAL STATUTES OF NORTH CAROLINA 



CHAPTER 150B 



THE ADMINISTRATIVE PROCEDURE ACT 



[The following excerpt contains the statutory provisions of the Administrative Procedure Act as amended 
by the 1993 General Assembly, effective July 23, 1993 and October 1, 1993.] 



Article 1 . 
General Provisions. 
§ 150B-1. Policy and scope. 

(a) Purpose. — This Chapter establishes a uni- 
form system of administrative rule making and 
adjudicatory procedures for agencies. The proce- 
dures ensure that the functions of rule making, 
investigation, advocacy, and adjudication are not 
all performed by the same person in the adminis- 
trative process. 

(b) Rights. — This Chapter confers procedural 
rights. 

(c) Full Exemptions. — This Chapter applies to 
every agency except: 

(1) The North Carolina National Guard in 
exercising its court-martial jurisdiction. 

(2) The Department of Human Resources 
in exercising its authority over the 
Camp Butner reservation granted in 
Article 6 of Chapter 122C of the Gen- 
eral Statutes. 

(3) The Utilities Commission. 

(4) The Industrial Commission. 

(5) The Employment Security Commission. 

(d) Exemptions From Rule Making. — Article 
2A of this Chapter does not apply to the following: 

(1) The Commission. 

(2) The North Carolina Low-Level Radio- 
active Waste Management Authority in 
administering the provisions of G.S. 
104G-10and G.S. 104G-11. 

(3) The North Carolina Hazardous Waste 
Management Commission in administer- 
ing the provisions of G.S. 130B-13 and 
G.S. 130B-14. 

(4) The Department of Revenue, except 
that Parts 3 and 4 of Article 2A apply 
to the Department. 

(5) The North Carolina Air Cargo Airport 
Authority with respect to the acquisi- 
tion, construction, operation, or use, 
including fees or charges, of any por- 
tion of a cargo airport complex. 

(e) Exemptions From Contested Case Provi- 
sions. — The contested case provisions of this 
Chapter apply to all agencies and all proceedings 



not expressly exempted from the Chapter. The 
contested case provisions of this Chapter do not 
apply to the following: 

(1) The Department of Human Resources 
and the Department of Environment, 
Health, and Natural Resources in com- 
plying with the procedural safeguards 
mandated by Section 680 of Part H of 
Public Law 99-457 as amended (Educa- 
tion of the Handicapped Act Amend- 
ments of 1986). 

(2) The — Govcrnor'9 — Waste — Management 
Board in admini s tering the provision s of 
G.S. 10 4 E 6.2 and G.S. 130A 293 . 

(3) The North Carolina Low-Level Radio- 
active Waste Management Authority in 
administering the provisions of G.S. 
104G-9, 104G-10, and 104G-11. 

(4) The North Carolina Hazardous Waste 
Management Commission in administer- 
ing the provisions of G.S. 130B-11, 
130B-13, and 130B-14. 

(5) Hearings required pursuant to the Reha- 
bilitation Act of 1973, (Public Law 
93-122), as amended and federal regu- 
lations promulgated thereunder. G.S. 
150B-51(a) is considered a contested 
case hearing provision that does not 
apply to these hearings. 

(6) The Department of Revenue. 

(7) The Department of Correction. 

(8) The Department of Transportation, 
except as provided in G.S. 136-29. 

(9) The Occupational Safety and Health 
Review Board in all actions that do not 
involve agricultural employers. 

(10) The North Carolina Air Cargo Airport 
Authority with respect to the acquisi- 
tion, construction, operation, or use, 
including fees or charges, of any por- 
tion of a cargo airport complex. 

(f) Exemption From All But Judicial Review. - 
No Article in this Chapter except Article 4 applies 
to the University of North Carolina. 
§ 150B-2. Definitions. - As used in this 

Chapter, 



8:13 



NORTH CAROLINA REGISTER 



October 1, 1993 



1187 



GENERAL STATUTES OF NORTH CAROLINA 



(01) "Administrative law judge" means a 
person appointed under G.S. 7A-752, 
7A-753, or 7A-757. 

(1) "Agency" means an agency or an offi- 
cer in the executive branch of the gov- 
ernment of this State and includes the 
Council of State, the Governor's Of- 
fice, a board, a commission, a depart- 
ment, a division, a council, and any 
other unit of government in the execu- 
tive branch. A local unit of govern- 
ment is not an agency. 

(la) "Adopt" means to take final action to 
create, amend, or repeal a rule. 

(lb) "Codifier of Rules" means the Chief 
Administrative Law Judge of the Office 
of Administrative Hearings or a desig- 
nated representative of the Chief Ad- 
ministrative Law Judge. 

(lc) "Commission" means the Rules Review 
Commission. 

(2) "Contested case" means an administra- 
tive proceeding pursuant to this Chapter 
to resolve a dispute between an agency 
and another person that involves the 
person's rights, duties, or privileges, 
including licensing or the levy of a 
monetary penalty. "Contested case" 
does not include rulemaking, declarato- 
ry rulings, or the award or denial of a 
scholarship or grant. 

(2a) Repealed. 

(2b) "Hearing officer" means a person or 
group of persons designated by an 
agency that is subject to Article 3A of 
this Chapter to preside in a contested 
case hearing conducted under that Arti- 
cle. 

(3) "License" means any certificate, permit 
or other evidence, by whatever name 
called, of a right or privilege to engage 
in any activity, except licenses issued 
under Chapter 20 and Subchapter I of 
Chapter 105 of the General Statutes and 
occupational licenses. 

(4) "Licensing" means any administrative 
action issuing, failing to issue, suspend- 
ing, or revoking a license or occupa- 
tional license. "Licensing" does not 
include controversies over whether an 
examination was fair or whether the 
applicant passed the examination. 

(4a) Occupational license" means any certifi- 
cate, permit, or other evidence, by 
whatever name called, of a right or 



privilege to engage in a profession, 
occupation, or field of endeavor that is 
issued by an occupational licensing 
agency. 
(4b) "Occupational licensing agency" means 
any board, commission, committee or 
other agency of the State of North 
Carolina which is established for the 
primary purpose of regulating the entry 
of persons into, and/or the conduct of 
persons within a particular profession, 
occupation or field of endeavor, and 
which is authorized to issue and revoke 
licenses. "Occupational licensing agen- 
cy" does not include State agencies or 
departments which may as only a part 
of their regular function issue permits 
or licenses. 

(5) "Party" means any person or agency 
named or admitted as a party or proper- 
ly seeking as of right to be admitted as 
a party and includes the agency as 
appropriate. This subdivision does not 
permit an agency that makes a final 
decision, or an officer or employee of 
the agency, to petition for initial judi- 
cial review of that decision. 

(6) "Person aggrieved" means any person 
or group of persons of common interest 
directly or indirectly affected substan- 
tially in his or its person, property, or 
employment by an administrative deci- 
sion. 

(7) "Person" means any natural person, 
partnership, corporation, body politic 
and any unincorporated association, 
organization, or society which may sue 
or be sued under a common name. 

(8) "Residence" means domicile or princi- 
pal place of business. 

(8a) "Rule" means any agency regulation, 
standard, or statement of general appli- 
cability that implements or interprets an 
enactment of the General Assembly or 
Congress or a regulation adopted by a 
federal agency or that describes the 
procedure or practice requirements of 
an agency. The term includes the 
establishment of a fee and the amend- 
ment or repeal of a prior rule. The 
term does not include the following: 
a. Statements concerning only the 
internal management of an agency 
or group of agencies within the 
same principal office or depart- 



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ment enumerated in G.S. 143-11 
or 143B-6, including policies and 
procedures manuals, if the state- 
ment does not directly or substan- 
tially affect the procedural or 
substantive rights or duties of a 
person not employed by the agen- 
cy or group of agencies. 

b. Budgets and budget policies and 
procedures issued by the Director 
of the Budget, by the head of a 
department, as defined by G.S. 
143A-2 or G.S. 143B-3, by an 
occupational licensing board, as 
defined by G.S. 93B-1, or by the 
State Board of Elections. 

c. Nonbinding interpretive state- 
ments within the delegated author- 
ity of an agency that merely 
define, interpret, or explain the 
meaning of a statute or rule. 

d. A form, the contents or substan- 
tive requirements of which are 
prescribed by rule or statute. 

e. Statements of agency policy made 
in the context of another proceed- 
ing, including: 

1. Declaratory rulings under G.S. 
150B-4. 

2. Orders establishing or fixing 
rates or tariffs. 

f. Requirements, communicated to 
the public by the use of signs or 
symbols, concerning the use of 
public roads, bridges, ferries, 
buildings, or facilities. 

g. Statements that set forth criteria 
or guidelines to be used by the 
staff of an agency in performing 
audits, investigations, or inspec- 
tions; in settling financial disputes 
or negotiating financial arrange- 
ments; or in the defense, prosecu- 
tion, or settlement of cases. 

h. Scientific, architectural, or engi- 
neering standards, forms, or 
procedures, including design 
criteria and construction standards 
used to construct or maintain 
highways, bridges, or ferries. 

i. Job classification standards, job 
qualifications, and salaries estab- 
lished for positions under the 
jurisdiction of the State Personnel 
Commission. 



j. Establishment of the interest rate 
that applies to tax assessments 
under G.S. 105-241.1 and the 
variable component of the excise 
tax on motor fuel under G.S. 
105-434. 
(8b) "Substantial evidence" means relevant 
evidence a reasonable mind might 
accept as adequate to support a con- 
clusion. 
(9) Repealed. 
§ 150B-3. Special provisions on licensing. 

(a) When an applicant or a licensee makes a 
timely and sufficient application for issuance or 
renewal of a license or occupational license, 
including the payment of any required license fee, 
the existing license or occupational license does 
not expire until a decision on the application is 
finally made by the agency, and if the application 
is denied or the terms of the new license or occu- 
pational license are limited, until the last day for 
applying for judicial review of the agency order. 
This subsection does not affect agency action 
summarily suspending a license or occupational 
license under subsections (b) and (c) of this sec- 
tion. 

(b) Before the commencement of proceedings 
for the suspension, revocation, annulment, with- 
drawal, recall, cancellation, or amendment of any 
license other than an occupational license, the 
agency shall give notice to the licensee, pursuant 
to the provisions of G.S. 150B-23. Before the 
commencement of such proceedings involving an 
occupational license, the agency shall give notice 
pursuant to the provisions of G.S. 150B-38. In 
either case, the licensee shall be given an opportu- 
nity to show compliance with all lawful require- 
ments for retention of the license or occupational 
license. 

(c) If the agency finds that the public health, 
safety, or welfare requires emergency action and 
incorporates this finding in its order, summary 
suspension of a license or occupational license may 
be ordered effective on the date specified in the 
order or on service of the certified copy of the 
order at the last known address of the licensee, 
whichever is later, and effective during the pro- 
ceedings. The proceedings shall be promptly 
commenced and determined. 

Nothing in this subsection shall be construed as 
amending or repealing any special statutes, in 
effect prior to February 1, 1976, which provide 
for the summary suspension of a license. 
§ 150B-4. Declaratory rulings. 
(a) On request of a person aggrieved, an agency 



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shall issue a declaratory ruling as to the validity of 
a rule or as to the applicability to a given state of 
facts of a statute administered by the agency or of 
a rule or order of the agency, except when the 
agency for good cause finds issuance of a ruling 
undesirable. The agency shall prescribe in its 
rules the circumstances in which rulings shall or 
shall not be issued. A declaratory ruling is bind- 
ing on the agency and the person requesting it 
unless it is altered or set aside by the court. An 
agency may not retroactively change a declaratory 
ruling, but nothing in this section prevents an 
agency from prospectively changing a declaratory 
ruling. A declaratory ruling is subject to judicial 
review in the same manner as an order in a con- 
tested case. Failure of the agency to issue a 
declaratory ruling on the merits within 60 days of 
the request for such ruling shall constitute a denial 
of the request as well as a denial of the merits of 
the request and shall be subject to judicial review, 
(b) This section does not apply to the Depart- 
ment of Correction. 

Article 2. 
Rule Making. 

Repealed. 

Article 2A. 
Rules. 
Part 1 . General Provisions. 
§ 150B-18. Scope and effect. 

This Article applies to an agency's exercise of its 
authority to adopt a rule. A rule is not valid 
unless it is adopted in substantial compliance with 
this Article. 

§ 150B-19. Restrictions on what can be adopt- 
ed as a rule. 

An agency may not adopt a rule that does one or 
more of the following: 

(1) Implements or interprets a law unless 
that law or another law specifically 
authorizes the agency to do so. 

(2) Enlarges the scope of a profession, 
occupation, or field of endeavor for 
which an occupational license is re- 
quired. 

(3) Imposes criminal liability or a civil 
penalty for an act or omission, includ- 
ing the violation of a rule, unless a law 
specifically authorizes the agency to do 
so or a law declares that violation of 
the rule is a criminal offense or is 
grounds for a civil penalty. 

(4) Repeats the content of a law, a rule, or 
a federal regulation. 

(5) Establishes a reasonable fee or other 



reasonable charge for providing a ser- 
vice in fulfillment of a duty unless a 
law specifically authorizes the agency 
to do so or the fee or other charge is 
for one of the following: 

a. A service to a State, federal, or local 
governmental unit. 

b. A copy of part or all of a State publi- 
cation or other document, the cost of 
mailing a document, or both. 

c. A transcript of a public hearing. 

d. A conference, workshop, or course. 

e. Data processing services. 

(6) Allows the agency to waive or modify 
a requirement set in a rule unless a rule 
establishes specific guidelines the agen- 
cy must follow in determining whether 
to waive or modify the requirement. 

§ 150B-20. Petitioning an agency to adopt a 

rule. 

(a) Petition. — A person may petition an agency 
to adopt a rule by submitting to the agency a 
written rule-making petition requesting the adop- 
tion. A person may submit written comments with 
a rule-making petition. If a rule-making petition 
requests the agency to create or amend a rule, the 
person must submit the proposed text of the 
requested rule change and a statement of the effect 
of the requested rule change. Each agency must 
establish by rule the procedure for submitting a 
rule-making petition to it and the procedure the 
agency follows in considering a rule-making 
petition. 

(b) Time. — An agency must grant or deny a 
rule-making petition submitted to it within 30 days 
after the date the rule-making petition is submitted, 
unless the agency is a board or commission. If the 
agency is a board or commission, it must grant or 
deny a rule-making petition within 120 days after 
the date the rule-making petition is submitted. 

(c) Action. — If an agency denies a rule-making 
petition, it must send the person who submitted the 
petition a written statement of the reasons for 
denying the petition. If an agency grants a 
rule-making petition, it must inform the person 
who submitted the rule-making petition of its 
decision and must initiate rule-making proceedings. 
When an agency grants a rule-making petition 
requesting the creation or amendment of a rule, the 
notice of rule making it publishes in the North 
Carolina Register may state that the agency is 
initiating rule-making proceedings as the result of 
a rule-making petition, state the name of the 
person who submitted the rule-making petition, set 
out the text of the requested rule change submitted 



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with the rule-making petition, and state whether 
the agency endorses the proposed rule change. 

(d) Review. — Denial of a rule-making petition 
is a final agency decision and is subject to judicial 
review under Article 4 of this Chapter. Failure of 
an agency to grant or deny a rule-making petition 
within the time limits set in subsection (b) is a 
denial of the rule-making petition. 

(e) Exception. — This section does not apply to 
the Department of Correction. 

§ 150B-21. Agency must designate 

rule-making coordinator. 

Each agency must designate one or more 
rule-making coordinators to oversee the agency's 
rule-making functions. The coordinator must 
prepare notices of public hearings, coordinate 
access to the agency's rules, and serve as the 
liaison between the agency, other agencies, and the 
public in the rule-making process. 

Part 2. Adoption of Rules. 
§ 150B-21.1. Procedure for adopting a tem- 
porary rule. 

(a) Adoption. - An agency may adopt a tempo- 
rary rule without prior notice or hearing or upon 
any abbreviated notice or hearing the agency finds 
practical when it finds that adherence to the notice 
and hearing requirements of this Part would be 
contrary to the public interest and that the immedi- 
ate adoption of the rule is required by one or more 
of the following: 

(1) A serious and unforeseen threat to the 
public health, safety, or welfare. 

(2) The effective date of a recent act of the 
General Assembly or the United States 
Congress. 

(3) A recent change in federal or State 
budgetary policy. 

(4) A federal regulation. 

(5) A court order. 

(6) The need for the rule to become effec- 
tive the same date as the State Medical 
Facilities Plan approved by the Gover- 
nor, if the rule addresses a matter 
included in the State Medical Facilities 
Plan. 

An agency must prepare a written statement of 
its findings of need for a temporary rule. The 
statement must be signed by the head of the agen- 
cy adopting the rule. 

An agency must begin rule-making proceedings 
for a permanent rule by the day it adopts a tempo- 
rary rule. An agency begins rule-making proceed- 
ings for a permanent rule by submitting to the 
codifier written notice of its intent to adopt a 
permanent rule. 



(b) Review. — When an agency adopts a tempo- 
rary rule it must submit the rule, the agency's 
written statement of its findings of need for the 
rule, and the notice of intent to adopt a permanent 
rule to the Codifier of Rules. Within one business 
day after an agency submits a temporary rule, the 
Codifier of Rules must review the agency's written 
statement of findings of need for the rule to deter- 
mine whether the statement of need meets the 
criteria listed in subsection (a). In reviewing the 
statement, the Codifier of Rules may consider any 
information submitted by the agency or another 
person. If the Codifier of Rules finds that the 
statement meets the criteria, the Codifier of Rules 
must notify the head of the agency and enter the 
rule in the North Carolina Administrative Code. 

If the Codifier of Rules finds that the statement 
does not meet the criteria, the Codifier of Rules 
must immediately notify the head of the agency. 
The agency may supplement its statement of need 
with additional findings or submit a new statement. 
If the agency provides additional findings or 
submits a new statement, the Codifier of Rules 
must review the additional findings or new state- 
ment within one business day after the agency 
submits the additional findings or new statement. 
If the Codifier of Rules again finds that the state- 
ment does not meet the criteria listed in subsection 
(a), the Codifier of Rules must immediately notify 
the head of the agency. 

If an agency decides not to provide additional 
findings or submit a new statement when notified 
by the Codifier of Rules that the agency's findings 
of need for a rule do not meet the required crite- 
ria, the agency must notify the Codifier of Rules 
of its decision. The Codifier of Rules must then 
enter the rule in the North Carolina Administrative 
Code on the sixth business day after receiving 
notice of the agency's decision. 

(c) Standing. — A person aggrieved by a tempo- 
rary rule adopted by an agency may file an action 
for declaratory judgment in Wake County Superior 
Court pursuant to Article 26 of Chapter 1 of the 
General Statutes. In the action, the court shall 
determine whether the agency's written statement 
of findings of need for the rule meets the criteria 
listed in subsection (a) and whether the rule meets 
the standards in G.S. 150B-21.9 that apply to 
review of a permanent rule. The court may not 
grant an ex parte temporary restraining order. 

Filing a petition for rule making or a request for 
a declaratory ruling with the agency that adopted 
the rule is not a prerequisite to filing an action 
under this subsection. A person who files an 
action for declaratory judgment under this subsec- 



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GENERAL STATUTES OF NORTH CAROLINA 



tion must serve a copy of the complaint on the 
agency that adopted the rule being contested, the 
Codifier of Rules, and the Commission. 

(d) Effective Date and Expiration. — A tempo- 
rary rule becomes effective on the date specified in 
G.S. 150B-21.3. A temporary rule expires on the 
date specified in the rule or 1 80 days from the date 
the rule becomes effective, whichever comes first. 
§ 150B-21.2. Procedure for adopting a per- 
manent rule. 

(a) Notice. — Before an agency adopts a perma- 
nent rule, it must publish notice of its intent to 
adopt a permanent rule in the North Carolina 
Register and as required by any other law. The 
notice published in the North Carolina Register 
must include all of the following: 

(1) Either the text of the proposed rule or 
a statement of the subject matter of the 
proposed rule making. 

(2) A short explanation of the reason for 
the proposed action. 

(3) A citation to the law that gives the 
agency the authority to adopt the pro- 
posed rule, if the notice includes the 
text of the proposed rule, or a citation 
to the law that gives the agency the 
authority to adopt a rule on the subject 
matter of the proposed rule making, if 
the notice includes only a statement of 
the subject matter of the proposed rule 
making. 

(4) The proposed effective date of the 
proposed rule, if the notice includes the 
text of the proposed rule, or the pro- 
posed effective date of a rule adopted 
on the subject matter of the proposed 
rule making, if the notice includes only 
a statement of the subject matter of the 
proposed rule making. 

(5) The date, time, and place of any public 
hearing scheduled on the proposed rule 
or subject matter of the proposed rule 
making. 

(6) Instructions on how a person may 
demand a public hearing on a proposed 
rule if the notice does not schedule a 
public hearing on the proposed rule and 
subsection (c) requires the agency to 
hold a public hearing on the proposed 
rule when requested to do so. 

(7) The period of time during which and 
the person to whom written comments 
may be submitted on the proposed rule 
or subject matter of the proposed rule 
making. 



(8) If a fiscal note has been prepared for 

the proposed rule or will be prepared 

when a rule is proposed on the subject 

matter of the proposed rule making, a 

statement that a copy of the fiscal note 

can be obtained from the agency. 

(b) Mailing List. — An agency must maintain a 

mailing list of persons who have requested notice 

of rule making. When an agency publishes a 

rule-making notice in the North Carolina Register, 

it must mail a copy of the notice to each person on 

the mailing list who has requested notice of 

rule-making proceedings on the rule or the subject 

matter for rule making described in the notice. An 

agency may charge an annual fee to each person 

on the agency's mailing list to cover copying and 

mailing costs. 

(c) Hearing. — An agency must hold a public 
hearing on a rule it proposes to adopt in two 
circumstances and may hold a public hearing in 
other circumstances. When an agency is required 
to hold a public hearing on a proposed rule or 
decides to hold a public hearing on a proposed rule 
when it is not required to do so, the agency must 
publish in the North Carolina Register a notice of 
the date, time, and place of the public hearing. 
The hearing date of a public hearing held after the 
agency publishes notice of the hearing in the North 
Carolina Register must be at least 15 days after the 
date the notice is published. 

An agency must hold a public hearing on a rule 
it proposes to adopt in the following two circum- 
stances: 

(1) The agency publishes a statement of the 
subject matter of the proposed rule 
making in the notice in the North Caro- 
lina Register. 

(2) The agency publishes the text of the 
proposed rule in the notice in the North 
Carolina Register and all the following 
apply: 

a. The notice does not schedule a public 
hearing on the proposed rule. 

b. Within 15 days after the notice is 
published, the agency receives a 
written request for a public hearing on 
the proposed rule. 

c. The proposed rule is not part of a 
rule-making proceeding the agency 
initiated by publishing a statement of 
the subject matter of proposed rule 
making. 

d. The proposed text is not a changed 
version of proposed text the agency 
previously published in the course of 



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GENERAL STATUTES OF NORTH CAROLINA 



rule-making proceedings but did not 
adopt. 

(d) Text After Subject-Matter Notice. -- When 
an agency publishes notice of the subject matter of 
proposed rule making in the North Carolina 
Register, it must subsequently publish in the North 
Carolina Register the text of the rule it proposes to 
adopt as a result of the public hearing and of any 
comments received on the subject matter. An 
agency may not publish the proposed text of a rule 
for which it published a subject-matter notice 
before the public hearing on the subject matter. 

(e) Comments. — An agency must accept com- 
ments on the text of a proposed rule published in 
the North Carolina Register for at least 30 days 
after the text is published or until the date of any 
public hearing held on the proposed rule, whichev- 
er is longer. An agency must accept comments on 
a statement of the subject matter of proposed rule 
making until the public hearing on the subject 
matter. An agency must consider fully all written 
and oral comments received. 

(f) Adoption. — An agency may not adopt a rule 
until the time for commenting on the proposed text 
of the rule has elapsed and may not adopt a rule if 
more than 12 months have elapsed since the end of 
the time for commenting on the proposed text of 
the rule. An agency may not adopt a rule that 
differs substantially from the text of a proposed 
rule published in the North Carolina Register 
unless the agency publishes the text of the pro- 
posed different rule in the North Carolina Register 
and accepts comments on the proposed different 
rule for the time set in subsection (e). 

An adopted rule differs substantially from a 
proposed rule if it does one or more of the follow- 
ing: 

(1) Affects the interests of persons who, 
based on the notice published in the 
North Carolina Register or the pro- 
posed text of the rule, could not reason- 
ably have determined that the rule 
would affect their interests. 

(2) Addresses a subject matter or an issue 
that is not addressed in the proposed 
text of the rule. 

(3) Produces an effect that could not rea- 
sonably have been expected based on 
the proposed text of the rule. 

When an agency adopts a rule, it may not take 
subsequent action on the rule without following the 
procedures in this Part. 

(g) Explanation. -- An agency must issue a 
concise written statement explaining why the 
agency adopted a rule if, within 30 days after the 



agency adopts the rule, a person asks the agency to 
do so. The explanation must state the principal 
reasons for and against adopting the rule and must 
discuss why the agency rejected any arguments 
made or considerations urged against the adoption 
of the rule. 

(h) Record. — An agency must keep a record of 
a rule-making proceeding. The record must 
include all written comments received, a transcript 
or recording of any public hearing held on the 
rule, and any written explanation made by the 
agency for adopting the rule. 
§ 150B-21.3. Effective date of rules. 

(a) Temporary Rule. — A temporary rule be- 
comes effective on the date the Codifier of Rules 
enters the rule in the North Carolina Administra- 
tive Code. 

(b) Permanent Rule. — A permanent rule ap- 
proved by the Commission becomes effective five 
business days after the Commission delivers the 
rule to the Codifier of Rules, unless the agency 
adopting the rule specifies a later effective date. 
If the agency specifies a later effective date, the 
rule becomes effective on that date. 

A permanent rule that is not approved by the 
Commission becomes effective five business days 
after the agency adopting the rule delivers the rule 
to the Codifier of Rules, unless the agency adopt- 
ing the rule specifies a later effective date. If the 
agency specifies a later effective date, the rule 
becomes effective on that date. 

(c) OSHA Standard. — A permanent rule con- 
cerning an occupational safety and health standard 
that is adopted by the Occupational Safety and 
Health Division of the Department of Labor and is 
identical to a federal regulation promulgated by the 
Secretary of the United States Department of 
Labor becomes effective on the date the Division 
delivers the rule to the Codifier of Rules, unless 
the Division specifies a later effective date. If the 
Division specifies a later effective date, the rule 
becomes effective on that date. 

§ 150B-21.4. Fiscal notes on rules. 

(a) State Funds. — Before an agency publishes in 
the North Carolina Register the proposed text of a 
permanent rule change that would require the 
expenditure or distribution of funds subject to the 
Executive Budget Act, Article 1 of Chapter 143, it 
must submit the text of the proposed rule change 
and a fiscal note on the proposed rule change to 
the Director of the Budget and obtain certification 
from the Director that the funds that would be 
required by the proposed rule change are available. 
The fiscal note must state the amount of funds that 
would be expended or distributed as a result of the 



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GENERAL STATUTES OF NORTH CAROLINA 



proposed rule change and explain how the amount 
was computed. The Director of the Budget must 
certify a proposed rule change if funds are avail- 
able to cover the expenditure or distribution 
required by the proposed rule change. 

(b) Local Funds. — Before an agency publishes 
in the North Carolina Register the proposed text of 
a permanent rule change that would affect the 
expenditures or revenues of a unit of local govern- 
ment, it must submit the text of the proposed rule 
change and a fiscal note on the proposed rule 
change to the Fiscal Research Division of the 
General Assembly, the Office of State Budget and 
Management, the North Carolina Association of 
County Commissioners, and the North Carolina 
League of Municipalities. The fiscal note must 
state the amount by which the proposed rule 
change would increase or decrease expenditures or 
revenues of a unit of local government and must 
explain how the amount was computed. 

(c) Errors. -- An erroneous fiscal note prepared 
in good faith does not affect the validity of a rule. 
§ 150B-21.5. Circumstances when notice and 
rule-making hearing not required. 

(a) Amendment. — An agency is not required to 
publish a notice of rule making in the North 
Carolina Register or hold a public hearing when it 
proposes to amend a rule, without changing the 
substance of the rule, to do one of the following: 

(1) Reletter or renumber the rule or 
subparts of the rule. 

(2) Substitute one name for another when 
an organization or position is renamed. 

(3) Correct a citation in the rule to another 
rule or law when the citation has be- 
come inaccurate since the rule was 
adopted because of the repeal or renum- 
bering of the cited rule or law. 

(4) Change information that is readily 
available to the public, such as an 
address or a telephone number. 

(5) Correct a typographical error made in 
entering the rule in the North Carolina 
Administrative Code. 

(6) Change a rule in response to a request 
or an objection by the Commission. 

(b) Repeal. — An agency is not required to 
publish a notice of rule making in the North 
Carolina Register or hold a public hearing when it 
proposes to repeal a rule as a result of any of the 
following: 

(1) The law under which the rule was 
adopted is repealed. 

(2) The law under which the rule was 
adopted or the rule itself is declared 



unconstitutional. 
(3) The rule is declared to be in excess of 
the agency's statutory authority. 

(c) OSHA Standard. — The Occupational Safety 
and Health Division of the Department of Labor is 
not required to publish a notice of rule making in 
the North Carolina Register or hold a public 
hearing when it proposes to adopt a rule that 
concerns an occupational safety and health stan- 
dard and is identical to a federal regulation pro- 
mulgated by the Secretary of the United States 
Department of Labor. The Occupational Safety 
and Health Division is not required to submit to 
the Commission for review a rule for which notice 
and hearing is not required under this subsection. 
§ 150B-21.6. Incorporating material in a rule 
by reference. 

An agency may incorporate the following materi- 
al by reference in a rule without repeating the text 
of the referenced material: 

( 1 ) Another rule or part of a rule adopted by 
the agency. 

(2) All or part of a code, standard, or regula- 
tion adopted by another agency, the 
federal government, or a generally recog- 
nized organization or association. 

(3) Material adopted to meet a requirement 
of the federal government. 

In incorporating material by reference, the 
agency must designate in the rule whether or not 
the incorporation includes subsequent amendments 
and editions of the referenced material. The 
agency can change this designation only by a 
subsequent rule-making proceeding. The agency 
must have copies of the incorporated material 
available for inspection and must specify in the 
rule both where copies of the material can be 
obtained and the cost on the date the rule is adopt- 
ed of a copy of the material. 

A statement in a rule that a rule incorporates 
material by reference in accordance with former 
G.S. 150B- 14(b) is a statement that the rule does 
not include subsequent amendments and editions of 
the referenced material. A statement in a rule that 
a rule incorporates material by reference in accor- 
dance with former G.S. 150B- 14(c) is a statement 
that the rule includes subsequent amendments and 
editions of the referenced material. 
§ 150B-21.7. Effect of transfer of duties or 
termination of agency on rules. 

When a law that authorizes an agency to adopt a 
rule is repealed and another law gives the same or 
another agency substantially the same authority to 
adopt a rule, the rule remains in effect until the 
agency amends or repeals the rule. When a law 



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GENERAL STATUTES OF NORTH CAROLINA 



that authorizes an agency to adopt a rule is re- 
pealed and another law does not give the same or 
another agency substantially the same authority to 
adopt a rule, a rule adopted under the repealed law 
is repealed as of the date the law is repealed. 

When an executive order abolishes part or all of 
an agency and transfers a function of that agency 
to another agency, a rule concerning the trans- 
ferred function remains in effect until the agency 
to which the function is transferred amends or 
repeals the rule. When an executive order abolish- 
es part or all of an agency and does not transfer a 
function of that agency to another agency, a rule 
concerning a function abolished by the executive 
order is repealed as of the effective date of the 
executive order. 

The Director of Fiscal Research of the General 
Assembly must notify the Codifier of Rules when 
a rule is repealed under this section. When noti- 
fied of a rule repealed under this section, the 
Codifier of Rules must enter the repeal of the rule 
in the North Carolina Administrative Code. 

Part 3. Review by Commission. 
§ 150B-21.8. Review of rule by Commission. 
(a) Temporary Rule. — The Commission does 
not review a temporary rule. 

(b) Permanent Rule. — An agency must submit 
a permanent rule adopted by it to the Commission 
before the rule can be included in the North 
Carolina Administrative Code. The Commission 
reviews a permanent rule in accordance with the 
standards in G.S. 150B-21.9 and follows the 
procedure in this Part in its review of a permanent 
rule. 

(c) Scope. — When the Commission reviews an 
amendment to a rule, it may review the entire rule 
that is being amended. The procedure in G.S. 
150B-21.12 applies when the Commission objects 
to a part of a rule that is within its scope of review 
but is not changed by a rule amendment. 

§ 150B-21.9. Standards and timetable for 
review by Commission. 

(a) Standards. — The Commission must deter- 
mine whether a rule meets all of the following 
criteria: 

(1) It is within the authority delegated to 
the agency by the General Assembly. 

(2) It is clear and unambiguous. 

(3) It is reasonably necessary to fulfill a 
duty delegated to the agency by the 
General Assembly. 

The Commission may determine if a rule submit- 
ted to it was adopted in accordance with Part 2 of 
this Article. The Commission must notify the 
agency that adopted the rule if it determines that a 



rule was not adopted in accordance with Part 2 of 
this Article and must return the rule to the agency. 
Entry of a rule in the North Carolina Administra- 
tive Code after review by the Commission is 
conclusive evidence that the rule was adopted in 
accordance with Part 2 of this Article. 

(b) Timetable. — The Commission must review 
a rule submitted to it on or before the twentieth of 
a month by the last day of the next month. The 
Commission must review a rule submitted to it 
after the twentieth of a month by the last day of 
the second subsequent month. 
§ 150B-21.10. Commission action on perma- 
nent rule. 

At the first meeting at which a permanent rule is 
before the Commission for review, the Commis- 
sion must take one of the following actions: 

(1) Approve the rule, if the Commission 
determines that the rule meets the stan- 
dards for review. 

(2) Object to the rule, if the Commission 
determines that the rule does not meet the 
standards for review. 

(3) Extend the period for reviewing the rule, 
if the Commission determines it needs 
additional information on the rule to be 
able to decide whether the rule meets the 
standards for review. 

In reviewing a new rule or an amendment to an 
existing rule, the Commission may request an 
agency to make technical changes to the rule and 
may condition its approval of the rule on the 
agency's making the requested technical changes. 
§ I50B-21.il. Procedure when Commission 
approves permanent rule. 

When the Commission approves a permanent 
rule, it must notify the agency that adopted the 
rule of the Commission's approval and must 
deliver the approved rule to the Codifier of Rules. 
The Commission must deliver an approved rule by 
the end of the month in which the Commission 
approved the rule, unless the agency asks the 
Commission to delay the delivery of the rule. 
§ 150B-21.12. Procedure when Commission 
objects to a permanent rule. 

(a) Action. — When the Commission objects to 
a permanent rule, it must send the agency that 
adopted the rule a written statement of the objec- 
tion and the reason for the objection. The agency 
that adopted the rule must take one of the follow- 
ing actions: 

(1) Change the rule to satisfy the 
Commission's objection and submit the 
revised rule to the Commission. 

(2) Submit a written response to the Com- 



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mission indicating that the agency has 
decided not to change the rule. 

An agency that is not a board or commission 
must take one of these actions within 30 days after 
receiving the Commission's statement of objection. 
A board or commission must take one of these 
actions within 30 days after receiving the 
Commission's statement of objection or within 10 
days after the board or commission's next regular- 
ly scheduled meeting, whichever comes later. 

When an agency changes a rule in response to an 
objection by the Commission, the Commission 
must determine whether the change satisfies the 
Commission's objection. If it does, the Commis- 
sion must approve the rule. If it does not, the 
Commission must send the agency a written 
statement of the Commission's continued objection 
and the reason for the continued objection. 

A rule to which the Commission has objected 
remains under review by the Commission until the 
agency that adopted the rule decides not to satisfy 
the Commission's objection and makes a written 
request to the Commission to return the rule to the 
agency. When the Commission returns a rule to 
which it has objected, it may send to the President 
of the Senate and each member of the General 
Assembly a report of its objection to the rule. 

(b) Entry in Code. — When the Commission 
returns a rule to which it has objected to the 
agency that adopted the rule, the Commission must 
notify the Codifier of Rules of its action and of the 
basis of the Commission's objection. An agency 
whose rule is returned may file the rule with the 
Codifier of Rules. When the Codifier of Rules 
enters in the North Carolina Administrative Code 
a rule to which the Commission objected, the entry 
must reflect the Commission's objection and must 
state the standard on which the Commission based 
its objection. 

§ 150B-21.13. Procedure when Commission 
extends period for review of permanent rule. 

When the Commission extends the period for 
review of a permanent rule, it must notify the 
agency that adopted the rule of the extension and 
the reason for the extension. After the Commis- 
sion extends the period for review of a rule, it may 
call a public hearing on the rule. Within 70 days 
after extending the period for review of a rule, the 
Commission must decide whether to approve the 
rule, object to the rule, or call a public hearing on 
the rule. 
§ 150B-21.14. Public hearing on a rule. 

The Commission may call a public hearing on a 
rule when it extends the period for review of the 
rule. At the request of an agency, the Commission 



may call a public hearing on a rule that is not 
before it for review. Calling a public hearing on 
a rule not already before the Commission for 
review places the rule before the Commission for 
review. When the Commission decides to call a 
public hearing on a rule, it must publish notice of 
the public hearing in the North Carolina Register. 
After a public hearing on a rule, the Commission 
must approve the rule or object to the rule in 
accordance with the standards and procedures in 
this Part. The Commission must make its decision 
of whether to approve or object to the rule within 
70 days after the public hearing. 
§ 150B-21.15. Declaratory judgment action 
authorized when Commission objects to a per- 
manent rule. 

(a) Standing. ~ A person aggrieved by a perma- 
nent rule entered in the North Carolina Adminis- 
trative Code with an objection by the Commission 
based on a lack of statutory authority may file an 
action for declaratory judgment in Wake County 
Superior Court pursuant to Article 26 of Chapter 
1 of the General Statutes. In the action, the court 
shall determine whether the agency exceeded its 
authority in adopting the rule. 

A declaratory judgment action under this section 
must be filed within 90 days after the rule that is 
the subject of the action is entered in the Code. 
Filing a petition for rule making or a request for a 
declaratory ruling with the agency that adopted the 
rule is not a prerequisite to filing an action under 
this section. A person who files an action for 
declaratory judgment under this section must serve 
a copy of the complaint on the agency that adopted 
the rule being contested, the Codifier of Rules, and 
the Commission. 

(b) Record. — Within 10 days after a declaratory 
judgment action is filed under this section, the 
agency that adopted the rule that is the subject of 
the action must send to the court the original or a 
certified copy of the record in the Commission's 
review of the rule. The record consists of the 
rule, the Commission's letter of objection to the 
rule, the agency's written response to the 
Commission's letter, and any other relevant docu- 
ments before the Commission when it decided to 
object to the rule. 

(c) Effect. — A rule remains in effect during 
the pendency of an action for declaratory judgment 
under this section unless the court suspends the 
rule after finding that the agency that adopted the 
rule has no substantial likelihood of prevailing in 
the action. 

(d) Changes. — While a rule is the subject of a 
declaratory judgment action under this section, the 



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agency that adopted the rule may submit to the 
Commission changes in the rule to satisfy the 
Commission's objection. If the Commission 
determines that changes submitted to it satisfy its 
objection, the Commission must accept the changes 
and file the revised rule with the Codifier of 
Rules. The Codifier must then enter the rule in 
the North Carolina Administrative Code. When 
the Commission determines that changes submitted 
to it satisfy its objection, the agency that submitted 
the changes must notify the court of the changes 
and of the Commission's action. 

Part 4. Publication of Code and Register. 
§ 150B-21.17. North Carolina Register. 

(a) Content. — The Codifier of Rules must 
publish the North Carolina Register. The North 
Carolina Register must be published at least two 
times a month and must contain the following: 

(1) Notices of proposed adoptions of rules. 

(2) Notices of receipt of a petition for 
municipal incorporation, as required by 
G.S. 120-165. 

(3) Executive orders of the Governor. 

(4) Final decision letters from the United 
States Attorney General concerning 
changes in laws that affect voting in a 
jurisdiction subject to § 5 of the Voting 
Rights Act of 1965, as required by 
G.S. 1 20-30. 9H. 

(5) Orders of the Tax Review Board issued 
under G.S. 105-241.2. 

(6) Other information the Codifier deter- 
mines helpful to the public. 

(b) Form. — When an agency publishes notice in 
the North Carolina Register of the proposed text of 
a new rule, the Codifier of Rules must publish the 
complete text of the proposed new rule. In pub- 
lishing the text of a proposed new rule, the Codifi- 
er must indicate the rule is new by underlining the 
proposed text of the rule. 

When an agency publishes notice in the North 
Carolina Register of the proposed text of an 
amendment to an existing rule, the Codifier must 
publish the complete text of the rule that is being 
amended unless the Codifier determines that 
publication of the complete text of the rule being 
amended is not necessary to enable the reader to 
understand the proposed amendment. In publish- 
ing the text of a proposed amendment to a rule, 
the Codifier must indicate deleted text with over- 
strikes and added text with underlines. 

When an agency publishes notice in the North 
Carolina Register of the proposed repeal of an 
existing rule, the Codifier must publish the com- 
plete text of the rule the agency proposes to repeal 



unless the Codifier determines that publication of 
the complete text is impractical. In publishing the 
text of a rule the agency proposes to repeal, the 
Codifier must indicate the rule is to be repealed. 
§ 150B-21.18. North Carolina Administrative 
Code. 

The Codifier of Rules must compile all rules into 
a Code known as the North Carolina Administra- 
tive Code. The format and indexing of the Code 
must conform as nearly as practical to the format 
and indexing of the North Carolina General Stat- 
utes. The Codifier must publish printed copies of 
the Code and may publish the Code in other 
forms. The Codifier must keep the Code current 
by publishing the Code in a loose-leaf format and 
periodically providing new pages to be substituted 
for outdated pages, by publishing the Code in 
volumes and periodically publishing cumulative 
supplements, or by another means. The Codifier 
must keep superseded rules. 
§ 150B-21.19. Requirements for including 
rule in Code. 

To be acceptable for inclusion in the North 
Carolina Administrative Code, a rule must: 

(1) Cite the law under which the rule is 
adopted. 

(2) Be signed by the head of the agency or 
the rule-making coordinator for the agen- 
cy that adopted the rule. 

(3) Be in the physical form specified by the 
Codifier of Rules. 

(4) Have been reviewed by the Commission, 
if the rule is a permanent rule. 

§ 150B-21.20. Codifier's authority to revise 
form of rules. 

(a) Authority. — After consulting with the 
agency that adopted the rule, the Codifier of Rules 
may revise the form of a rule submitted for inclu- 
sion in the North Carolina Administrative Code 
within 10 business days after the rule is submitted 
to do one or more of the following: 

(1) Rearrange the order of the rule in the 
Code or the order of the subsections, 
subdivisions, or other subparts of the 
rule. 

(2) Provide a catch line or heading for the 
rule or revise the catch line or heading 
of the rule. 

(3) Reletter or renumber the rule or the 
subparts of the rule in accordance with 
a uniform system. 

(4) Rearrange definitions and lists. 

(5) Make other changes in arrangement or 
in form that do not change the sub- 
stance of the rule and are necessary or 



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desirable for a clear and orderly ar- 
rangement of the rule. 

(b) Effect. — Revision of a rule by the Codifier 
of Rules under this section does not affect the 
effective date of the rule or require the agency to 
readopt or resubmit the rule. When the Codifier 
of Rules revises the form of a rule, the Codifier of 
Rules must send the agency that adopted the rule 
a copy of the revised rule. The revised rule is the 
official rule. 

§ 150B-21.21. Publication of rules of North 
Carolina State Bar and exempt agencies. 

(a) State Bar. -- The North Carolina State Bar 
must submit a rule adopted or approved by it and 
entered in the minutes of the North Carolina 
Supreme Court to the Codifier of Rules for inclu- 
sion in the North Carolina Administrative Code. 
The State Bar must submit a rule within 15 days 
after it is entered in the minutes of the Supreme 
Court. The Codifier of Rules must compile, make 
available for public inspection, and publish a rule 
included in the North Carolina Administrative 
Code under this subsection in the same manner as 
other rules in the Code. 

(b) Exempt Agencies. — Notwithstanding G.S. 
150B-1, the North Carolina Utilities Commission 
must submit to the Codifier of Rules those rules of 
the Utilities Commission that are published from 
time to time in the publication titled "North Caroli- 
na Utilities Laws and Regulations." The Utilities 
Commission must submit a rule required to be 
included in the Code within 15 days after it is 
adopted. The Codifier of Rules must publish the 
rules submitted by the Utilities Commission in the 
North Carolina Administrative Code in the same 
format as they are submitted. 

Notwithstanding G.S. 150B-1, an agency other 
than the Utilities Commission that is exempted 
from this Article by that statute must submit a 
temporary or permanent rule adopted by it to the 
Codifier of Rules for inclusion in the North Caroli- 
na Administrative Code. One of these exempt 
agencies must submit a rule to the Codifier of 
Rules within 15 days after it adopts the rule. The 
Codifier of Rules must compile, make available for 
public inspection, and publish a rule of one of 
these agencies in the North Carolina Administra- 
tive Code in the same manner as other rules in the 
Code. 
§ 150B-21.22. Effect of inclusion in Code. 

Official or judicial notice can be taken of a rule 
in the North Carolina Administrative Code and 
shall be taken when appropriate. Codification of a 
rule in the North Carolina Administrative Code is 
prima facie evidence of compliance with this 



Article. 

§ 150B-21.23. Rule publication manual. 

The Codifier of Rules must publish a manual that 
sets out the form and method for publishing a 
notice of rule making in the North Carolina Regis- 
ter and for filing a rule in the North Carolina 
Administrative Code. 

§ 150B-21.24. Free copies of Register and 
Code. 

(a) Register. — The Codifier of Rules must 
distribute copies of the North Carolina Register as 
soon after publication as practical, without charge, 
to the following: 

(1) A person who receives a free copy of 
the North Carolina Administrative 
Code. 

(2) Upon request, one copy to each mem- 
ber of the General Assembly. 

(b) Code. — The Codifier of Rules must distrib- 
ute copies of the North Carolina Administrative 
Code as soon after publication as practical, without 
charge, to the following: 

(1) One copy to the board of commission- 
ers of each county, to be placed at the 
county clerk of court's office or at 
another place selected by the board of 
commissioners. 

(2) One copy to the Commission. 

(3) One copy to the Clerk of the Supreme 
Court and to the Clerk of the Court of 
Appeals of North Carolina. 

(4) One copy to the Supreme Court Library 
and one copy to the library of the Court 
of Appeals. 

(5) One copy to the Administrative Office 
of the Courts. 

(6) One copy to the Governor. 

(7) Five copies to the Legislative Services 
Commission for the use of the General 
Assembly. 

(8) Upon request, one copy to each State 
official or department to whom or to 
which copies of the appellate division 
reports are furnished under G.S. 
7A-343.1. 

(9) Five copies to the Division of State 
Library of the Department of Cultural 
Resources pursuant to G.S. 125-11.7. 

§ 150B-21.25. Paid copies of Register and 
Code. 

A person who is not entitled to a free copy of the 
North Carolina Administrative Code or North 
Carolina Register may obtain a copy by paying a 
fee set by the Codifier of Rules. The Codifier 
must set separate fees for the North Carolina 



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Register and the North Carolina Administrative 
Code in amounts that cover publication, copying, 
and mailing costs. All monies received under this 
section must be credited to the General Fund. 
Article 3. 
Administrative Hearings. 
§ 150B-22. Settlement; contested case. 

It is the policy of this State that any dispute 
between an agency and another person that in- 
volves the person's rights, duties, or privileges, 
including licensing or the levy of a monetary 
penalty, should be settled through informal proce- 
dures. In trying to reach a settlement through 
informal procedures, the agency may not conduct 
a proceeding at which sworn testimony is taken 
and witnesses may be cross-examined. If the 
agency and the other person do not agree to a 
resolution of the dispute through informal proce- 
dures, either the agency or the person may com- 
mence an administrative proceeding to determine 
the person's rights, duties, or privileges, at which 
time the dispute becomes a "contested case. " 
§ 150B-23. Commencement; assignment of 
administrative law judge; hearing required; 
notice; intervention. 

(a) A contested case shall be commenced by 
filing a petition with the Office of Administrative 
Hearings and, except as provided in Article 3A of 
this Chapter, shall be conducted by that Office. 
The party who files the petition shall serve a copy 
of the petition on all other parties and, if the 
dispute concerns a license, the person who holds 
the license. A party who files a petition shall file 
a certificate of service together with the petition. 
A petition shall be signed by a party or a represen- 
tative of the party and, if filed by a party other 
than an agency, shall state facts tending to estab- 
lish that the agency named as the respondent has 
deprived the petitioner of property, has ordered the 
petitioner to pay a fine or civil penalty, or has 
otherwise substantially prejudiced the petitioner's 
rights and that the agency: 

(1) Exceeded its authority or jurisdiction; 

(2) Acted erroneously; 

(3) Failed to use proper procedure; 

(4) Acted arbitrarily or capriciously; or 

(5) Failed to act as required by law or rule. 
The parties in a contested case shall be given an 

opportunity for a hearing without undue delay. 
Any person aggrieved may commence a contested 
case hereunder. 

A local government employee, applicant for 
employment, or former employee to whom Chap- 
ter 126 of the General Statutes applies may com- 
mence a contested case under this Article in the 



same manner as any other petitioner. The case 
shall be conducted in the Office of Administrative 
Hearings in the same manner as other contested 
cases under this Article, except that the decision of 
the State Personnel Commission shall be advisory 
only and not binding on the local appointing 
authority, unless (1) the employee, applicant, or 
former employee has been subjected to discrimina- 
tion prohibited by Article 6 of Chapter 1 26 of the 
General Statutes or (2) applicable federal stan- 
dards require a binding decision. In these two 
cases, the State Personnel Commission's decision 
shall be binding. 

(al) Repealed by Session Laws 1985 (Reg. 
Sess., 1986), c. 1022, s. 1(9). 

(a2) An administrative law judge assigned to a 
contested case may require a party to the case to 
file a prehearing statement. A party's prehearing 
statement must be served on all other parties to the 
contested case. 

(b) The parties to a contested case shall be given 
a notice of hearing not less than 15 days before the 
hearing by the Office of Administrative Hearings. 
If prehearing statements have been filed in the 
case, the notice shall state the date, hour, and 
place of the hearing. If prehearing statements 
have not been filed in the case, the notice shall 
state the date, hour, place, and nature of the 
hearing, shall list the particular sections of the 
statutes and rules involved, and shall give a short 
and plain statement of the factual allegations. 

(c) Notice shall be given personally or by 
certified mail. If given by certified mail, it shall 
be deemed to have been given on the delivery date 
appearing on the return receipt. If giving of notice 
cannot be accomplished either personally or by 
certified mail, notice shall then be given in the 
manner provided in G.S. 1A-1, Rule 4(jl). 

(d) Any person may petition to become a party 
by filing a motion to intervene in the manner 
provided in G.S. 1A-1, Rule 24. In addition, any 
person interested in a contested case may intervene 
and participate in that proceeding to the extent 
deemed appropriate by the administrative law 
judge. 

(e) All hearings under this Chapter shall be open 
to the public. Hearings shall be conducted in an 
impartial manner. Hearings shall be conducted 
according to the procedures set out in this Article, 
except to the extent and in the particulars that 
specific hearing procedures and time standards are 
governed by another statute. 

(f) Unless another statute or a federal statute or 
regulation sets a time limitation for the filing of a 
petition in contested cases against a specified 



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agency, the general limitation for the filing of a 
petition in a contested case is 60 days. The time 
limitation, whether established by another statute, 
federal statute, or federal regulation, or this 
section, shall commence when notice is given of 
the agency decision to all persons aggrieved who 
are known to the agency by personal delivery or 
by the placing of the notice in an official deposito- 
ry of the United States Postal Service wrapped in 
a wrapper addressed to the person at the latest 
address given by the person to the agency. The 
notice shall be in writing, and shall set forth the 
agency action, and shall inform the persons of the 
right, the procedure, and the time limit to file a 
contested case petition. When no informal settle- 
ment request has been received by the agency 
prior to issuance of the notice, any subsequent 
informal settlement request shall not suspend the 
time limitation for the filing of a petition for a 
contested case hearing. 

^ 150B-23.1. Mediated settlement confer- 

ences. 

(a) Purpose. ~ This section authorizes a media- 
tion program in the Office of Administrative 
Hearings in which the chief administrative law 
judge may require the parties in a contested case to 
attend a prehearing settlement conference conduct- 
ed by a mediator. The purpose of the program is 
to determine whether a system of mediated settle- 
ment conferences may make the operation of the 
Office of Administrative Hearings more efficient, 
less costly, and more satisfying to the parties. 

£b] Definitions. — The following definitions 
apply in this section: 

(1) Mediated settlement conference. — A 
conference ordered by the chief admin- 
istrative law judge involving the parties 
to a contested case and conducted by a 
mediator prior to a contested case 
hearing- 
Mediator. ~ A neutral person who acts 
to encourage and facilitate a resolution 
of a contested case but who does not 
make a decision on the merits of the 
contested case. 



ill 



(c) Conference. ~ The chief administrative law 
judge may order a mediated settlement conference 
for all or any part of a contested case to which an 
administrative law judge is assigned to preside. 
All aspects of the mediated settlement conference 
shall be conducted in so far as possible jn accor- 
dance with the rules adopted by the Supreme Court 
for the court-ordered mediation pilot program 
under G.S. 7 A- 38 . 

(d) Attendance. — The parties to a contested 



case in which a mediated settlement conference is 
ordered, their attorneys, and other persons having 
authority to settle the parties' claims shall attend 
the settlement conference unless excused by the 
presiding administrative law judge. 

(e) Mediator. ~ The parties shall have the right 
to stipulate to a mediator. Upon the failure of the 
parties to agree within a time limit established by 
the presiding administrative law judge, a mediator 
shall be appointed by the presiding administrative 
law judge. 

(f) Sanctions. ~ Upon failure of a party or a 
party's attorney to attend a mediated settlement 
conference ordered under this section, the presid- 
ing administrative law judge may impose any 
sanction authorized by G.S. 150B-33fb)(8) or (10). 

(g) Standards. — Mediators authorized to con- 
duct mediated settlement conferences under this 
section shall comply with the standards adopted by 
the Supreme Court for the court-ordered mediation 
pilot program under G.S. 7A-38. 

(h) Immunity. ~ A mediator acting pursuant to 
this section shall have judicial immunity in the 
same manner and to the same extent as a judge of 
the General Court of Justice. 

(i) Costs. ~ Costs of a mediated settlement 
conference shall be paid one share by the petition- 
er, one share by the respondent, and an equal 
share by any intervenor, unless otherwise 
apportioned by the administrative law judge. 

(j) Inadmissibility of Negotiations, — All 
conduct or communications made during a 
mediated settlement conference are presumed to be 
made in compromise negotiations and shall be 
governed by Rule 408 of the North Carolina Rules 
of Evidence. 

Ck) Right to Hearing. ~ Nothing in this section 
restricts the right to a contested case hearing. 
§ 150B-24. Venue of hearing. 

(a) The hearing of a contested case shall be 
conducted: 

(1) In the county in this State in which any 
person whose property or rights are the 
subject matter of the hearing maintains 
his residence; 

(2) In the county where the agency main- 
tains its principal office if the property 
or rights that are the subject matter of 
the hearing do not affect any person or 
if the subject matter of the hearing is 
the property or rights of residents of 
more than one county; or 

(3) In any county determined by the admin- 
istrative law judge in his discretion to 
promote the ends of justice or better 



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serve the convenience of witnesses, 
(b) Any person whose property or rights are the 
subject matter of the hearing waives his objection 
to venue by proceeding in the hearing. 
§ 150B-25. Conduct of hearing; answer. 

(a) If a party fails to appear in a contested case 
after proper service of notice, and if no adjourn- 
ment or continuance is granted, the administrative 
law judge may proceed with the hearing in the 
absence of the party. 

(b) Repealed. 

(c) The parties shall be given an opportunity to 
present arguments on issues of law and policy and 
an opportunity to present evidence on issues of 
fact. 

(d) A party may cross-examine any witness, 
including the author of a document prepared by, 
on behalf of, or for use of the agency and offered 
in evidence. Any party may submit rebuttal 
evidence. 

§ 150B-26. Consolidation. 

When contested cases involving a common 
question of law or fact or multiple proceedings 
involving the same or related parties are pending, 
the Director of the Office of Administrative Hear- 
ings may order a joint hearing of any matters at 
issue in the cases, order the cases consolidated, or 
make other orders to reduce costs or delay in the 
proceedings. 
§ 150B-27. Subpoena. 

After the commencement of a contested case, 
subpoenas may be issued and served in accordance 
with G.S. 1A-1, Rule 45. In addition to the 
methods of service in G.S. 1A-1, Rule 45, a State 
law enforcement officer may serve a subpoena on 
behalf of an agency that is a party to the contested 
case by any method by which a sheriff may serve 
a subpoena under that Rule. Upon a motion, the 
administrative law judge may quash a subpoena if, 
upon a hearing, the administrative law judge finds 
that the evidence the production of which is re- 
quired does not relate to a matter in issue, the 
subpoena does not describe with sufficient particu- 
larity the evidence the production of which is 
required, or for any other reason sufficient in law 
the subpoena may be quashed. Witness fees shall 
be paid by the party requesting the subpoena to 
subpoenaed witnesses in accordance with G.S. 
7A-314. However, State officials or employees 
who are subpoenaed shall not be entitled to witness 
fees, but they shall receive their normal salary and 
they shall not be required to take any annual leave 
for the witness days. Travel expenses of State 
officials or employees who are subpoenaed shall be 
reimbursed as provided in G.S. 138-6. 



§ 150B-28. Depositions and discovery. 

(a) A deposition may be used in lieu of other 
evidence when taken in compliance with the Rules 
of Civil Procedure, G.S. 1A-1. Parties in contest- 
ed cases may engage in discovery pursuant to the 
provisions of the Rules of Civil Procedure, G.S. 
1A-1. 

(b) On a request for identifiable agency records, 
with respect to material facts involved in a contest- 
ed case, except records related solely to the inter- 
nal procedures of the agency or which are exempt 
from disclosure by law, an agency shall promptly 
make the records available to a party. 

§ 150B-29. Rules of evidence. 

(a) In all contested cases, irrelevant, immaterial 
and unduly repetitious evidence shall be excluded. 
Except as otherwise provided, the rules of evi- 
dence as applied in the trial division of the General 
Court of Justice shall be followed; but, when 
evidence is not reasonably available under the 
rules to show relevant facts, then the most reliable 
and substantial evidence available shall be admit- 
ted. On the judge's own motion, an administrative 
law judge may exclude evidence that is inadmissi- 
ble under this section. It shall not be necessary 
for a party or his attorney to object at the hearing 
to evidence in order to preserve the right to object 
to its consideration by the administrative law judge 
in making a recommended decision, by the agency 
in making a final decision, or by the court on 
judicial review. 

(b) Evidence in a contested case, including 
records and documents, shall be offered and made 
a part of the record. Factual information or 
evidence not made a part of the record shall not be 
considered in the determination of the case, except 
as permitted under G.S. 150B-30. Documentary 
evidence may be received in the form of a copy or 
excerpt or may be incorporated by reference, if the 
materials so incorporated are available for exami- 
nation by the parties. Upon timely request, a 
party shall be given an opportunity to compare the 
copy with the original if available. 

§ 150B-30. Official notice. 

Official notice may be taken of all facts of which 
judicial notice may be taken and of other facts 
within the specialized knowledge of the agency. 
The noticed fact and its source shall be stated and 
made known to affected parties at the earliest 
practicable time, and any party shall on timely 
request be afforded an opportunity to dispute the 
noticed fact through submission of evidence and 
argument. 
§ 150B-31. Stipulations. 

(a) The parties in a contested case may, by a 



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stipulation in writing filed with the administrative 
law judge, agree upon any fact involved in the 
controversy, which stipulation shall be used as 
evidence at the hearing and be binding on the 
parties thereto. Parties should agree upon facts 
when practicable. 

(b) Except as otherwise provided by law, dispo- 
sition may be made of a contested case by stipula- 
tion, agreed settlement, consent order, waiver, 
default, or other method agreed upon by the 
parties. 

§ 150B-32. Designation of administrative law 
judge. 

(a) The Director of the Office of Administrative 
Hearings shall assign himself or another adminis- 
trative law judge to preside over a contested case. 

(al) Repealed by Session Laws 1985 (Reg. 
Sess., 1986), c. 1022, s. 1 (15), effective July 15, 
1986. 

(b) On the filing in good faith by a party of a 
timely and sufficient affidavit of personal bias or 
disqualification of an administrative law judge, the 
administrative law judge shall determine the matter 
as a part of the record in the case, and this deter- 
mination shall be subject to judicial review at the 
conclusion of the proceeding. 

(c) When an administrative law judge is disqual- 
ified or it is impracticable for him to continue the 
hearing, the Director shall assign another adminis- 
trative law judge to continue with the case unless 
it is shown that substantial prejudice to any party 
will result, in which event a new hearing shall be 
held or the case dismissed without prejudice. 

§ 150B-33. Powers of administrative law 

judge. 

(a) An administrative law judge shall stay any 
contested case under this Article on motion of an 
agency which is a party to the contested case, if 
the agency shows by supporting affidavits that it is 
engaged in other litigation or administrative pro- 
ceedings, by whatever name called, with or before 
a federal agency, and this other litigation or 
administrative proceedings will determine the 
position, in whole or in part, of the agency in the 
contested case. At the conclusion of the other 
litigation or administrative proceedings, the con- 
tested case shall proceed and be determined as 
expeditiously as possible. 

(b) An administrative law judge may: 

(1) Administer oaths and affirmations; 

(2) Sign, issue, and rule on subpoenas in 
accordance with G.S. 150B-27 and 
G.S. 1A-1, Rule 45; 

(3) Provide for the taking of testimony by 
deposition and rule on all objections to 



discovery in accordance with G.S. 
1 A- 1 , the Rules of Civil Procedure; 
(3a) Rule on all prehearing motions that are 
authorized by G.S. 1A-1, the Rules of 
Civil Procedure; 

(4) Regulate the course of the hearings, 
including discovery, set the time and 
place for continued hearings, and fix 
the time for filing of briefs and other 
documents; 

(5) Direct the parties to appear and confer 
to consider simplification of the issues 
by consent of the parties; 

(6) Stay the contested action by the agency 
pending the outcome of the case, upon 
such terms as he deems proper, and 
subject to the provisions of G.S. 1A-1, 
Rule 65; 

(7) Determine whether the hearing shall be 
recorded by a stenographer or by an 
electronic device; and 

(8) Enter an order returnable in the General 
Court of Justice, Superior Court Divi- 
sion, to show cause why the person 
should not be held in contempt. The 
Court shall have the power to impose 
punishment as for contempt for any act 
which would constitute direct or indi- 
rect contempt if the act occurred in an 
action pending in Superior Court. 

(9) Determine that a rule as applied in a 
particular case is void because (1) it is 
not within the statutory authority of the 
agency, (2) is not clear and unambigu- 
ous to persons it is intended to direct, 
guide, or assist, or (3) is not reasonably 
necessary to enable the agency to fulfill 
a duty delegated to it by the General 
Assembly. 

(10) Impose the sanctions provided for in 
G.S. 1A-1 or Chapter 3 of Title 26 of 
the North Carolina Administrative Code 
for noncompliance with applicable 
procedural rules. 

§ 150B-34. Recommended decision or order 
of administrative law judge. 

(a) Except as provided in G.S. 150B-36(c), in 
each contested case the administrative law judge 
shall make a recommended decision or order that 
contains findings of fact and conclusions of law. 

(b) Repealed . 

§ 150B-35. No ex parte communication; 

exceptions. 

Unless required for disposition of an ex parte 
matter authorized by law, neither the administra- 



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tive law judge assigned to a contested case nor a 
member or employee of the agency making a final 
decision in the case may communicate, directly or 
indirectly, in connection with any issue of fact, or 
question of law, with any person or party or his 
representative, except on notice and opportunity 
for all parties to participate. 
§ 150B-36. Final decision. 

(a) Before the agency makes a final decision, it 
shall give each party an opportunity to file excep- 
tions to the decision recommended by the adminis- 
trative law judge, and to present written arguments 
to those in the agency who will make the final 
decision or order. If a party files in good faith a 
timely and sufficient affidavit of personal bias or 
other reason for disqualification of a member of 
the agency making the final decision, the agency 
shall determine the matter as a part of the record 
in the case, and the determination is subject to 
judicial review at the conclusion of the case. 

(b) A final decision or order in a contested case 
shall be made by the agency in writing after 
review of the official record as defined in G.S. 
150B-37(a) and shall include findings of fact and 
conclusions of law. If the agency does not adopt 
the administrative law judge's recommended 
decision as its final decision, the agency shall state 
in its decision or order the specific reasons why it 
did not adopt the administrative law judge's rec- 
ommended decision. The agency may consider 
only the official record prepared pursuant to G.S. 
150B-37 in making a final decision or order, and 
the final decision or order shall be supported by 
substantial evidence admissible under G.S. 
150B-29(a), 150B-30, or 150B-31. A copy of the 
decision or order shall be served upon each party 
personally or by certified mail addressed to the 
party at the latest address given by the party to the 
agency, and a copy shall be furnished to his 
attorney of record and the Office of Administrative 
Hearings. 

(c) The following decisions made by administra- 
tive law judges in contested cases are final deci- 
sions: 

(1) A determination that the Office of 
Administrative Hearings lacks jurisdic- 
tion. 

(2) An order entered pursuant to the au- 
thority in G.S. 7A-759(e). 

(3) An order entered pursuant to a written 
prehearing motion that either dismisses 
the contested case for failure of the 
petitioner to prosecute or grants the 
relief requested when a party does not 
comply with procedural requirements. 



(4) An order entered pursuant to a 
prehearing motion to dismiss the con- 
tested case in accordance with G.S. 
1A-1, Rule 12(b) when the order dis- 
poses of all issues in the contested case. 
§ 150B-37. Official record. 

(a) In a contested case, the Office of Adminis- 
trative Hearings shall prepare an official record of 
the case that includes: 

(1) Notices, pleadings, motions, and inter- 
mediate rulings; 

(2) Questions and offers of proof, objec- 
tions, and rulings thereon; 

(3) Evidence presented; 

(4) Matters officially noticed, except mat- 
ters so obvious that a statement of them 
would serve no useful purpose; and 

(5) Repealed by Session Laws 1987, c. 
878, s. 25, effective August 14, 1987. 

(6) The administrative law judge's recom- 
mended decision or order. 

(b) Proceedings at which oral evidence is 
presented shall be recorded, but need not be 
transcribed unless requested by a party. Each 
party shall bear the cost of the transcript or part 
thereof or copy of said transcript or part thereof 
which said party requests, and said transcript or 
part thereof shall be added to the official record as 
an exhibit. 

(c) The Office of Administrative Hearings shall 
forward a copy of the official record to the agency 
making the final decision and shall forward a copy 
of the recommended decision to each party. 
Article 3A. 
Other Administrative Hearings. 
§ 150B-38. Scope; hearing required; notice; 
venue. 

(a) The provisions of this Article shall apply to 
the following agencies: 

(1) Occupational licensing agencies; 

(2) The State Banking Commission, the 
Commissioner of Banks, the Savings 
Institutions Division of the Department 
of Commerce, and the Credit Union 
Division of the Department of Com- 
merce; and 

(3) The Department of Insurance and the 
Commissioner of Insurance. 

(b) Prior to any agency action in a contested 
case, the agency shall give the parties in the case 
an opportunity for a hearing without undue delay 
and notice not less than 15 days before the hear- 
ing. Notice to the parties shall include: 

(1) A statement of the date, hour, place, 
and nature of the hearing; 



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(2) A reference to the particular sections of 
the statutes and rules involved; and 

(3) A short and plain statement of the facts 
alleged. 

(c) Notice shall be given personally or by 
certified mail. If given by certified mail, notice 
shall be deemed to have been given on the delivery 
date appearing on the return receipt. If notice 
cannot be given personally or by certified mail, 
then notice shall be given in the manner provided 
in G.S. 1A-1, Rule 40U- 

(d) A party who has been served with a notice 
of hearing may file a written response with the 
agency. If a written response is filed, a copy of 
the response must be mailed to all other parties not 
less than 10 days before the date set for the hear- 
ing. 

(e) All hearings conducted under this Article 
shall be open to the public. A hearing conducted 
by the agency shall be held in the county where 
the agency maintains its principal office. A 
hearing conducted for the agency by an administra- 
tive law judge requested under G.S. 150B-40 shall 
be held in a county in this State where any person 
whose property or rights are the subject matter of 
the hearing resides. If a different venue would 
promote the ends of justice or better serve the 
convenience of witnesses, the agency or the admin- 
istrative law judge may designate another county. 
A person whose property or rights are the subject 
matter of the hearing waives his objection to venue 
if he proceeds in the hearing. 

(f) Any person may petition to become a party 
by filing with the agency or hearing officer a 
motion to intervene in the manner provided by 
G.S. 1A-1. Rule 24. In addition, any person 
interested in a contested case under this Article 
may intervene and participate to the extent deemed 
appropriate by the agency hearing officer. 

(g) When contested cases involving a common 
question of law or fact or multiple proceedings 
involving the same or related parties are pending 
before an agency, the agency may order a joint 
hearing of any matters at issue in the cases, order 
the cases consolidated, or make other orders to 
reduce costs or delay in the proceedings. 

(h) Every agency shall adopt rules governing the 
conduct of hearings that are consistent with the 
provisions of this Article. 

§ 150B-39. Depositions; discovery; subpoe- 
nas. 

(a) A deposition may be used in lieu of other 
evidence when taken in compliance with the Rules 
of Civil Procedure, G.S. 1A-1. Parties in a 
contested case may engage in discovery pursuant 



to the provisions of the Rules of Civil Procedure, 
G.S. 1A-1. 

(b) Upon a request for an identifiable agency 
record involving a material fact in a contested 
case, the agency shall promptly provide the record 
to a party, unless the record relates solely to the 
agency's internal procedures or is exempt from 
disclosure by law. 

(c) In preparation for, or in the conduct of, a 
contested case subpoenas may be issued and served 
in accordance with G.S. 1A-1, Rule 45. Upon a 
motion, the agency may quash a subpoena if, upon 
a hearing, the agency finds that the evidence, the 
production of which is required, does not relate to 
a matter in issue, the subpoena does not describe 
with sufficient particularity the evidence the 
production of which is required, or for any other 
reason sufficient in law the subpoena may be 
quashed. Witness fees shall be paid by the party 
requesting the subpoena to subpoenaed witnesses 
in accordance with G.S. 7A-314. However, State 
officials or employees who are subpoenaed shall 
not be entitled to any witness fees, but they shall 
receive their normal salary and they shall not be 
required to take any annual leave for the witness 
days. Travel expenses of State officials or em- 
ployees who are subpoenaed shall be reimbursed 
as provided in G.S. 138-6. 

§ 150B-40. Conduct of hearing; presiding 
officer; ex parte communication. 

(a) Hearings shall be conducted in a fair and 
impartial manner. At the hearing, the agency and 
the parties shall be given an opportunity to present 
evidence on issues of fact, examine and 
cross-examine witnesses, including the author of a 
document prepared by, on behalf of or for the use 
of the agency and offered into evidence, submit 
rebuttal evidence, and present arguments on issues 
of law or policy. 

If a party fails to appear in a contested case after 
he has been given proper notice, the agency may 
continue the hearing or proceed with the hearing 
and make its decision in the absence of the party. 

(b) Except as provided under subsection (e) of 
this section, hearings under this Article shall be 
conducted by a majority of the agency. An agency 
shall designate one or more of its members to 
preside at the hearing. If a party files in good 
faith a timely and sufficient affidavit of the person- 
al bias or other reason for disqualification of any 
member of the agency, the agency shall determine 
the matter as a part of the record in the case, and 
its determination shall be subject to judicial review 
at the conclusion of the proceeding. If a presiding 
officer is disqualified or it is impracticable for him 



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to continue the hearing, another presiding officer 
shall be assigned to continue with the case, except 
that if assignment of a new presiding officer will 
cause substantial prejudice to any party, a new 
hearing shall be held or the case dismissed without 
prejudice. 

(c) The presiding officer may: 

(1) Administer oaths and affirmations; 

(2) Sign and issue subpoenas in the name 
of the agency, requiring attendance and 
giving of testimony by witnesses and 
the production of books, papers, and 
other documentary evidence; 

(3) Provide for the taking of testimony by 
deposition; 

(4) Regulate the course of the hearings, set 
the time and place for continued hear- 
ings, and fix the time for filing of 
briefs and other documents; 

(5) Direct the parties to appear and confer 
to consider simplification of the issues 
by consent of the parties; and 

(6) Apply to any judge of the superior 
court resident in the district or presid- 
ing at a term of court in the county 
where a hearing is pending for an order 
to show cause why any person should 
not be held in contempt of the agency 
and its processes, and the court shall 
have the power to impose punishment 
as for contempt for acts which would 
constitute direct or indirect contempt if 
the acts occurred in an action pending 
in superior court. 

(d) Unless required for disposition of an ex 
parte matter authorized by law, a member of an 
agency assigned to make a decision or to make 
findings of fact and conclusions of law in a con- 
tested case under this Article shall not communi- 
cate, directly or indirectly, in connection with any 
issue of fact or question of law, with any person or 
party or his representative, except on notice and 
opportunity for all parties to participate. This 
prohibition begins at the time of the notice of 
hearing. An agency member may communicate 
with other members of the agency and may have 
the aid and advice of the agency staff other than 
the staff which has been or is engaged in investi- 
gating or prosecuting functions in connection with 
the case under consideration or a factually-related 
case. This section does not apply to an agency 
employee or party representative with professional 
training in accounting, actuarial science, econom- 
ics or financial analysis insofar as the case in- 
volves financial practices or conditions. 



(e) When a majority of an agency is unable or 
elects not to hear a contested case, the agency shall 
apply to the Director of the Office of Administra- 
tive Hearings for the designation of an administra- 
tive law judge to preside at the hearing of a con- 
tested case under this Article. Upon receipt of the 
application, the Director shall, without undue 
delay, assign an administrative law judge to hear 
the case. 

The provisions of this Article, rather than the 
provisions of Article 3, shall govern a contested 
case in which the agency requests an administra- 
tive law judge from the Office of Administrative 
Hearings. 

The administrative law judge assigned to hear a 
contested case under this Article shall sit in place 
of the agency and shall have the authority of the 
presiding officer in a contested case under this 
Article. The administrative law judge shall make 
a proposal for decision, which shall contain pro- 
posed findings of fact and proposed conclusions of 
law. 

An administrative law judge shall stay any 
contested case under this Article on motion of an 
agency which is a party to the contested case, if 
the agency shows by supporting affidavits that it is 
engaged in other litigation or administrative pro- 
ceedings, by whatever name called, with or before 
a federal agency, and this other litigation or 
administrative proceedings will determine the 
position, in whole or in part, of the agency in the 
contested case. At the conclusion of the other 
litigation or administrative proceedings, the con- 
tested case shall proceed and be determined as 
expeditiously as possible. 

The agency may make its final decision only 
after the administrative law judge's proposal for 
decision is served on the parties, and an opportuni- 
ty is given to each party to file exceptions and 
proposed findings of fact and to present oral and 
written arguments to the agency. 
§ 150B-41. Evidence; stipulations; official 
notice. 

(a) In all contested cases, irrelevant, immaterial, 
and unduly repetitious evidence shall be excluded. 
Except as otherwise provided, the rules of evi- 
dence as applied in the trial division of the General 
Court of Justice shall be followed; but, when 
evidence is not reasonably available under such 
rules to show relevant facts, they may be shown 
by the most reliable and substantial evidence 
available. It shall not be necessary for a party or 
his attorney to object to evidence at the hearing in 
order to preserve the right to object to its consider- 
ation by the agency in reaching its decision, or by 



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GENERAL STATUTES OF NORTH CAROLINA 



the court of judicial review. 

(b) Evidence in a contested case, including 
records and documents shall be offered and made 
a part of the record. Other factual information or 
evidence shall not be considered in determination 
of the case, except as permitted under G.S. 
150B-30. Documentary evidence may be received 
in the form of a copy or excerpt or may be incor- 
porated by reference, if the materials so incorpo- 
rated are available for examination by the parties. 
Upon timely request, a party shall be given an 
opportunity to compare the copy with the original 
if available. 

(c) The parties in a contested case under this 
Article by a stipulation in writing filed with the 
agency may agree upon any fact involved in the 
controversy, which stipulation shall be used as 
evidence at the hearing and be binding on the 
parties thereto. Parties should agree upon facts 
when practicable. Except as otherwise provided 
by law, disposition may be made of a contested 
case by stipulation, agreed settlement, consent 
order, waiver, default, or other method agreed 
upon by the parties. 

(d) Official notice may be taken of all facts of 
which judicial notice may be taken and of other 
facts within the specialized knowledge of the 
agency. The noticed fact and its source shall be 
stated and made known to affected parties at the 
earliest practicable time, and any party shall on 
timely request be afforded an opportunity to 
dispute the noticed fact through submission of 
evidence and argument. An agency may use its 
experience, technical competence, and specialized 
knowledge in the evaluation of evidence presented 
to it. 

§ 150B-42. Final agency decision; official 
record. 

(a) After compliance with the provisions of G.S. 
150B-40(e), if applicable, and review of the 
official record, as defined in subsection (b) of this 
section, an agency shall make a written final 
decision or order in a contested case. The deci- 
sion or order shall include findings of fact and 
conclusions of law. Findings of fact shall be based 
exclusively on the evidence and on matters offi- 
cially noticed. Findings of fact, if set forth in 
statutory language, shall be accompanied by a 
concise and explicit statement of the underlying 
facts supporting them. A decision or order shall 
not be made except upon consideration of the 
record as a whole or such portion thereof as may 
be cited by any party to the proceeding and shall 
be supported by substantial evidence admissible 
under G.S. 150B-41. A copy of the decision or 



order shall be served upon each party personally 
or by certified mail addressed to the party at the 
latest address given by the party to the agency and 
a copy shall be furnished to his attorney of record. 

(b) An agency shall prepare an official record of 
a hearing that shall include: 

(1) Notices, pleadings, motions, and inter- 
mediate rulings; 

(2) Questions and offers of proof, objec- 
tions, and rulings thereon; 

(3) Evidence presented; 

(4) Matters officially noticed, except mat- 
ters so obvious that a statement of them 
would serve no useful purpose; 

(5) Proposed findings and exceptions; and 

(6) Any decision, opinion, order, or report 
by the officer presiding at the hearing 
and by the agency. 

(c) Proceedings at which oral evidence is pre- 
sented shall be recorded, but need not be tran- 
scribed unless requested by a party. Each party 
shall bear the cost of the transcript or part thereof 
or copy of said transcript or part thereof which 
said party requests. 

Article 4. 
Judicial Review. 
§ 150B-43. Right to judicial review. 

Any person who is aggrieved by the final deci- 
sion in a contested case, and who has exhausted all 
administrative remedies made available to him by 
statute or agency rule, is entitled to judicial review 
of the decision under this Article, unless adequate 
procedure for judicial review is provided by 
another statute, in which case the review shall be 
under such other statute. Nothing in this Chapter 
shall prevent any person from invoking any judi- 
cial remedy available to him under the law to test 
the validity of any administrative action not made 
reviewable under this Article. 
§ 150B-44. Right to judicial intervention 
when decision unreasonably delayed. 

Unreasonable delay on the part of any agency or 
administrative law judge in taking any required 
action shall be justification for any person whose 
rights, duties, or privileges are adversely affected 
by such delay to seek a court order compelling 
action by the agency or administrative law judge. 
An agency that is subject to Article 3 of this 
Chapter and is not a board or commission has 90 
days from the day it receives the official record in 
a contested case from the Office of Administrative 
Hearings to make a final decision in the case. 
This time limit may be extended by the parties or, 
for good cause shown, by the agency for an 
additional period of up to 90 days. An agency that 



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GENERAL STATUTES OF NORTH CAROLINA 



is subject to Article 3 of this Chapter and is a 
board or commission has 90 days from the day it 
receives the official record in a contested case 
from the Office of Administrative Hearings or 90 
days after its next regularly scheduled meeting, 
whichever is longer, to make a final decision in 
the case. This time limit may be extended by the 
parties or, for good cause shown, by the agency 
for an additional period of up to 90 days. If an 
agency subject to Article 3 of this Chapter has not 
made a final decision within these time limits, the 
agency is considered to have adopted the adminis- 
trative law judge's recommended decision as the 
agency's final decision. Failure of an agency 
subject to Article 3A of this Chapter to make a 
final decision within 180 days of the close of the 
contested case hearing is justification for a person 
whose rights, duties, or privileges are adversely 
affected by the delay to seek a court order compel- 
ling action by the agency or, if the case was heard 
by an administrative law judge, by the administra- 
tive law judge. 

§ 150B-45. Procedure for seeking review; 
waiver. 

To obtain judicial review of a final decision 
under this Article, the person seeking review must 
file a petition in the Superior Court of Wake 
County or in the superior court of the county 
where the person resides. 

The person seeking review must file the petition 
within 30 days after the person is served with a 
written copy of the decision. A person who fails 
to file a petition within the required time waives 
the right to judicial review under this Article. For 
good cause shown, however, the superior court 
may accept an untimely petition. 
§ 150B-46. Contents of petition; copies served 
on all parties; intervention. 

The petition shall explicitly state what exceptions 
are taken to the decision or procedure and what 
relief the petitioner seeks. Within 10 days after 
the petition is filed with the court, the party 
seeking the review shall serve copies of the peti- 
tion by personal service or by certified mail upon 
all who were parties of record to the administrative 
proceedings. Names and addresses of such parties 
shall be furnished to the petitioner by the agency 
upon request. Any party to the administrative 
proceeding is a party to the review proceedings 
unless the party withdraws by notifying the court 
of the withdrawal and serving the other parties 
with notice of the withdrawal. Other parties to the 
proceeding may file a response to the petition 
within 30 days of service. Parties, including 
agencies, may state exceptions to the decision or 



procedure and what relief is sought in the re- 
sponse. 

Any person aggrieved may petition to become a 
party by filing a motion to intervene as provided in 
G.S. 1A-1, Rule 24. 

§ 150B-47. Records filed with clerk of superi- 
or court; contents of records; costs. 

Within 30 days after receipt of the copy of the 
petition for review, or within such additional time 
as the court may allow, the agency that made the 
final decision in the contested case shall transmit 
to the reviewing court the original or a certified 
copy of the official record in the contested case 
under review together with: (i) any exceptions, 
proposed findings of fact, or written arguments 
submitted to the agency in accordance with G.S. 
150B-36(a); and (ii) the agency's final decision or 
order. With the permission of the court, the 
record may be shortened by stipulation of all 
parties to the review proceedings. Any party 
unreasonably refusing to stipulate to limit the 
record may be taxed by the court for such addi- 
tional costs as may be occasioned by the refusal. 
The court may require or permit subsequent 
corrections or additions to the record when deemed 
desirable. 
§ 150B-48. Stay of decision. 

At any time before or during the review proceed- 
ing, the person aggrieved may apply to the review- 
ing court for an order staying the operation of the 
administrative decision pending the outcome of the 
review. The court may grant or deny the stay in 
its discretion upon such terms as it deems proper 
and subject to the provisions of G.S. 1A-1, Rule 
65. 
§ 150B-49. New evidence. 

An aggrieved person who files a petition in the 
superior court may apply to the court to present 
additional evidence. If the court is satisfied that 
the evidence is materia] to the issues, is not merely 
cumulative, and could not reasonably have been 
presented at the administrative hearing, the court 
may remand the case so that additional evidence 
can be taken. If an administrative law judge did 
not make a recommended decision in the case, the 
court shall remand the case to the agency that 
conducted the administrative hearing. After 
hearing the evidence, the agency may affirm or 
modify its previous findings of fact and final 
decision. If an administrative law judge made a 
recommended decision in the case, the court shall 
remand the case to the administrative law judge. 
After hearing the evidence, the administrative law 
judge may affirm or modify his previous findings 
of fact and recommended decision. The administra- 



tis 



NORTH CAROLINA REGISTER 



October 1, 1993 



1207 



GENERAL STATUTES OF NORTH CAROLINA 



tive law judge shall forward a copy of his decision 
to the agency that made the final decision, which 
in turn may affirm or modify its previous findings 
of fact and final decision. The additional evidence 
and any affirmation or modification of a recom- 
mended decision or final decision shall be made 
part of the official record. 

§ 150B-50. Review by superior court without 
jury. 

The review by a superior court of agency deci- 
sions under this Chapter shall be conducted by the 
court without a jury. 
§ 150B-51. Scope of review. 

(a) Initial Determination in Certain Cases. In 
reviewing a final decision in a contested case in 
which an administrative law judge made a recom- 
mended decision, the court shall make two initial 
determinations. First, the court shall determine 
whether the agency heard new evidence after 
receiving the recommended decision. If the court 
determines that the agency heard new evidence, 
the court shall reverse the decision or remand the 
case to the agency to enter a decision in accor- 
dance with the evidence in the official record. 
Second, if the agency did not adopt the recom- 
mended decision, the court shall determine wheth- 
er the agency's decision states the specific reasons 
why the agency did not adopt the recommended 
decision. If the court determines that the agency 
did not state specific reasons why it did not adopt 
a recommended decision, the court shall reverse 
the decision or remand the case to the agency to 
enter the specific reasons. 

fb) Standard of Review. After making the 
determinations, if any, required by subsection (a), 
the court reviewing a final decision may affirm the 
decision of the agency or remand the case for 
further proceedings. It may also reverse or modi- 
fy the agency's decision if the substantial rights of 
the petitioners may have been prejudiced because 
the agency's findings, inferences, conclusions, or 
decisions are: 

(1) In violation of constitutional provisions; 

(2) In excess of the statutory authority or 
jurisdiction of the agency; 

(3) Made upon unlawful procedure; 

(4) Affected by other error of law; 

(5) Unsupported by substantial evidence 
admissible under G.S. 150B-29(a), 
150B-30, or 150B-31 in view of the 
entire record as submitted; or 

(6) Arbitrary or capricious. 

§ 150B-52. Appeal; stay of court's decision. 
A party to a review proceeding in a superior 
court may appeal to the appellate division from the 



final judgment of the superior court as provided in 
G.S. 7A-27. Pending the outcome of an appeal, 
an appealing party may apply to the court that 
issued the judgment under appeal for a stay of that 
judgment or a stay of the administrative decision 
that is the subject of the appeal, as appropriate. 

Article 5. 
Publication of Administrative Rules. 

Repealed. 



1208 



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October 1, 1993 



EXECUTIVE ORDERS 



EXECUTIVE ORDER NUMBER 24 

EMERGENCY RELIEF FOR DAMAGE 

CAUSED BY HURRICANE EMILY 

WHEREAS, the United States Department of 
Transportation, in conjunction with the North 
Carolina Department of Transportation, has de- 
clared a regional emergency justifying an exemp- 
tion from 49 C.F.R. 390-399 (Federal Motor 
Carrier Safety Regulations); and 

WHEREAS, under the provisions of N.C.G.S. 
166A-4(3) and 166A-6(c)(3), the Governor, with 
the concurrence of the Council of State, may 
waive the penalties for exceeding the weight limits 
imposed by said statutes in the event of an immi- 
nent threat of widespread damage from certain 
causes; and 

WHEREAS, with the concurrence of the Council 
of State, I have found that if vehicles bearing food, 
equipment, and supplies to relieve our hurricane- 
stricken counties must adhere to the weight restric- 
tions of N.C.G.S. 20-88, 20-96 and 20-118, 
citizens in those counties likely will suffer losses 
and, therefore, there is an imminent threat of 
widespread damage within the meaning of 
N.C.G.S. 166A-4(3); 

THEREFORE, pursuant to the authority vested 
in me by the Constitution and laws of this State 
and with the concurrence of the Council of State, 
IT IS ORDERED: 

Section L The Division of Motor Vehicles shall 
waive penalties arising under N.C.G.S. 20-88, 20- 
96, and 20-118 that otherwise would be assessed 
against vehicles transporting food, equipment, and 
supplies along our highways to North Carolina's 
hurricane-stricken counties. 

Section 2. Notwithstanding the waivers set forth 
above, penalties shall not be waived under the 
following conditions: 

(A) When the vehicle weight exceeds the 
maximum gross vehicle weight criteria 
established by the manufacturer (GVWR) 
or 90,000 pounds gross vehicle weight, 
whichever is less. 

(B) When tandem axle weights exceed 42,000 
pounds and single axle weights exceed 
22,000 pounds. 

Section 3. 

(A) Upon entering North Carolina, the 



vehicles will stop at the first available 
vehicle weight station and produce 
identification sufficient to establish that its 
load will be used for the Hurricane Emily 
relief effort. All other safety restrictions 
apply. If returning vehicles are loaded 
with some other backhaul, all normal 
weight and permit restrictions apply. 

(B) The $50.00 fee listed in N.C.G.S. 105- 
449.49 for a temporary trip permit is 
waived for the vehicles described above. 
The penalties described in N.C.G.S. 20- 
382 concerning insurance registration are 
waived also. Finally, no quarterly fuel 
tax is required because the exception in 
N.C.G.S. 105-449. 45(a)(1) applies. 

(C) The vehicles will be allowed only on 
primary and interstate routes designated 
by the North Carolina Department of 
Transportation. 

Section 4. This Order shall not be in effect on 
bridges posted pursuant to N.C.G.S. 136-72. 

This order shall be effective immediately and 
shall remain in effect for 30 days. 

Done in the Capital City of Raleigh, North 
Carolina, this the 7th day of September, 1993. 

EXECUTIVE ORDER NUMBER 25 
RECISSION OF EXECUTIVE ORDERS 

WHEREAS, the 1993 North Carolina General 
Assembly has enacted H. 1260, creating the 
Martin Luther King Commission; and 

WHEREAS, the 1993 General Assembly has also 
enacted S. 64, creating the Rail Council; 

NOW THEREFORE, by the authority vested in 
me as Governor by the Constitution and laws of 
the State of North Carolina, IT IS ORDERED: 

Section L 

Executive Order 55 (The Martin Luther King, Jr. 
Holiday Commission), dated September 30, 1987, 
as extended by Executive Orders 101 and 161, is 
hereby rescinded. 

Section 2. 

Executive Order 71 (The Governor's Task Force 
on Rail Passenger Service), dated March 1 1, 1988, 
as extended by Executive Order 94, and amended 
by Executive Order 125, is hereby rescinded. 



8:13 



NORTH CAROLINA REGISTER 



October 1, 1993 



1209 



EXECUTIVE ORDERS 



This Order is effective immediately. 

Done in Raleigh, North Carolina, this the 7th 
day of September, 1993. 

EXECUTIVE ORDER NUMBER 26 

BOARD OF TRUSTEES OF THE 

NORTH CAROLINA PUBLIC EMPLOYEE 

DEFERRED COMPENSATION PLAN 

WHEREAS, the Deferred Compensation 
Program is an important part of the financial 
planning and security of the public employees of 
the State of North Carolina. 

NOW, THEREFORE, by the power vested in me 
as Governor by the Constitution and laws of the 
State of North Carolina, IT IS ORDERED: 

Section 1. Establishment. 

Pursuant to N.C.G.S. 143B-426.24, there is 
hereby established a Board of Trustees of the 
North Carolina Public Employee Deferred 
Compensation Plan, which shall assume all 
authority, responsibilities and functions of the 
Board established on March 16, 1987, by 
Executive Order Number 39 of the Martin 
Administration. 

Section 2. Membership and Functions . 

The membership of the Board and its duties shall 
be as provided in N.C.G.S. 143B-426.24. The 
terms of the members shall be provided in 
N.C.G.S. 143B-426.24. The Secretary of 
Administration shall supply the Board with all 
administrative, legal, financial and personnel 
services that may be required by the Board. 
Guidelines for the funding for these services will 
be supplied by the Secretary of Administration as 
provided in N.C.G.S. 143B-426.24(1) and (m). 

Section 3. Effect on Other Executive Orders. 

Executive Order Number 39, as extended by 
Executive Order 185, of the Martin Administration 
is hereby rescinded. 

This Executive Order shall be effective 
immediately. 

Done in the Capital City of Raleigh, North 
Carolina, this the 7th day of September, 1993. 

EXECUTIVE ORDER NUMBER 27 

GOVERNOR'S COMMISSION FOR 

RECOGNITION OF STATE EMPLOYEES 



WHEREAS, the State of North Carolina has long 
been noted for loyal, efficient, and dedicated 
employees; and 

WHEREAS, dedicated employees provide valu- 
able services in all areas of state government; and 

WHEREAS, the services rendered by the em- 
ployees of the State of North Carolina are in 
accordance with the highest traditions of service to 
the citizens of this state; and 

WHEREAS, the State of North Carolina is proud 
to recognize contributions made by the employees 
of this state; 

NOW, THEREFORE, by the power vested in me 
as Governor by the Constitution and laws of the 
State of North Carolina, IT IS ORDERED: 

Section 1. Establishment. 



The Governor's Commission for Recognition of 
State Employees (hereafter, "the Commission") is 
hereby established. All previous Executive Orders 
which conflict with this Order are hereby rescind- 
ed. 

Section 2. Composition. 

The Commission shall be composed of five 
members. Four members shall be appointed by 
the Governor, and one member shall be appointed 
by the State Personnel Commission. The terms of 
the Governor's appointees shall be staggered so 
that two appointees shall serve two-year terms, and 
two shall serve four-year terms. Thereafter, all 
appointees shall serve four-year terms. Two of the 
appointees shall be active or retired state employ- 
ees and two shall be from private enterprise. The 
State Personnel Commission's appointee shall 
serve at the pleasure of the State Personnel Com- 
mission, and shall serve as the Commission's 
chair. Members are eligible to be reappointed. 

Section 3. Duties 

The duties of the Commission are: 

(a) to recommend each year to the Governor 
the week to be proclaimed "North Caroli- 
na State Employee Appreciation Week." 

(b) to make annual selections of those State 
employees to receive the "Governor's 
Award for Excellence." 

Section 4. Standards. 

The State Personnel Commission shall advise 
standards concerning the number and frequency of 



1210 



8:13 



NORTH CAROLINA REGISTER 



October 1, 1993 



EXECUTIVE ORDERS 



awards, and the selection process for recipients of 
employee awards. 

Section 5. Administrative Su pport. 

The Department of Administration shall be 
responsible for providing the necessary funds, 
administrative assistance, and support services 
needed by the Commission to perform its duties. 

This order shall be effective immediately. 

Done in the Capital City of Raleigh, North 
Carolina, this the 7th day of September, 1993. 



8:13 



NORTH CAROLINA REGISTER 



October 1, 1993 



1211 



PROPOSED RULES 



TITLE 2 - DEPARTMENT OF 
AGRICULTURE 

ISotice is hereby given in accordance with G.S. 
150B-21.2 that the N.C. Board of Agriculture 
intends to amend rules cited as 2 NCAC 38 .0701; 
48A . 1005; 52B .0210 and adopt 53 .0001. 

1 he proposed effective date of this action is 
January 1 . 1994. 

1 he public hearing will be conducted at 10:00 
a.m. on November 4, 1993 at the Vernon G. James 
Research and Extension Center, at the Tidewater 
Research Station, Plymouth (5 miles east of Plym- 
outh, NC on Highway 64). 

IXeason for Proposed Action; 

2 NCAC 38 .0701 - To require LP gas storage 
facilities to have automatic shutoff of emergency 

valves in the event of pull away accidents. 

2 NCAC 48A .1005 - To prevent importation of 

seed potatoes infected with the PVYN virus. 

2 NCAC 52B .0210 - To prevent importation of 

ratites infected with avian influenza. 

2 NCAC 53 .0001 - To provide for licensing of 

aquaculture facilities. 

Lsomment Procedures: Interested persons may 
present their statements either orally or in writing 
at the public hearing or in writing prior to the 
hearing by mail addressed to David S. McLeod, 
Secretary of the North Carolina Board of Agricul- 
ture, P.O. Box 27647, Raleigh, NC 27611. 

Editor's Note: 2 NCAC 52B .0210 was filed as 
a temporary amendment effective August 13, 1993 
for a period of 180 days or until the permanent 
rule becomes effective, whichever is sooner. 

CHAPTER 38 - STANDARDS DIVISION 

SECTION .0700 - STANDARDS FOR 
STORAGE: HANDLING AND 
INSTALLATION OF LP GAS 

.0701 ADOPTION BY REFERENCE 

The following are incorporated by reference, 
including subsequent amendments, as standards for 



storage, handling and installation of liquefied 
petroleum gas: 

(1) National Fire Protection Association, 
Pamphlet No. 58, "Storage and Handling 
of Liquefied Petroleum Gases," with the 
following additions and exceptions: 

(a) When two or more containers are mani- 
folded to a single service, each contain- 
er shall be considered independent of 
the other and all rules and regulations 
relating to a single container shall 
apply; 

(b) All cut-off valves and regulating equip- 
ment exposed to rain, sleet, or snow 
shall be protected against such elements 
either by design or by a hood; 

(c) "Firm Foundation" as used in Chapter 
3 of Pamphlet 58 means that the foun- 
dation material has a level top surface, 
rests on solid ground, is constructed of 
a masonry material or wood treated to 
prevent decay by moisture rot and will 
not settle, careen or deteriorate; 

(d) No person shall use liquefied petroleum 
gas as a source of pressure in lieu of 
compressed air in spray guns or other 
pressure operated equipment; 

(e) Piping, tubing or regulators shall be 
considered well supported when they 
are rigidly fastened in their intended 
position; and 

(f) At bulk storage installations, the bulk- 
head and the plant piping on the hose 
side of the bulkhead shall be designed 
and constructed so that an application 
of force from the hose side will not 
result in damage to the plant piping on 
the tank side of the bulkhead. In addi- 
tion, the bulkhead shall incorporate a 
mechanical means to automatically 
close emergency valves in the event of 
a pull away. 

(2) National Fire Protection Association, 
Pamphlet No. 54, "National Fuel Gas 
Code," with the addition that under- 
ground service piping shall rise above 
ground immediately before entering a 
building. 

Copies of Pamphlet No. 54 and Pamphlet No. 58 
are available for inspection in the Office of the 
Director of the Standards Division and may be 
obtained at a cost of twenty-four dollars and fifty 
cents ($24.50) each by contacting National Fire 
Protection Association, Inc., Batterymarch Park, 
Quincy, Massachusetts 02269. 



1212 



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October 1, 1993 



PROPOSED RULES 



Statutory Authority G.S. 119-55; 150B-21.6. 



CHAPTER 48 - PLANT INDUSTRY 

SUBCHAPTER 48A - PLANT PROTECTION 

SECTION .1000 - VEGETABLE PLANT CERTIFICATION 

.1005 STANDARDS 

(a) All vegetable plants shall meet the requirements of all applicable state and federal plant pest 
quarantines. 

(b) With the exception of asparagus, onion sets and white seed potatoes, all vegetable plants shall be field 
inspected within three days of their being placed for sale or being shipped into North Carolina. 

(c) With respect to the indicated plants, the following shall apply: 



Plant 



Tolerances 



Tomato 

Bacterial canker 

Bacterial spot 

Wilt diseases 

Other injurious diseases and viruses 

Root knot and other injurious nematodes 

Insects 

Pepper 

Bacterial spot 

Other injurious diseases and viruses 

Root knot and other injurious nematodes 

Insects 

Flowers and/or pods 
Pepper Weevil 
Sweet Potato 
Scurf 
Black rot 
Soil rot or pox 
Internal cork 
Fusarium wilt 

Other injurious diseases and viruses 
Root knot and other injurious nematodes 
Insects 

Cabbage and other cole crops 
Black rot 
Black leg 
Clubroot 
Yellows 

Other injurious diseases and viruses 
Root knot and other injurious nematodes 
Insects 

Eggplant 

Wilt diseases 








apparently free 


no apparent injury 
or infestation 


apparently free 


no apparent injury 
or infestation 
apparently free 












apparently free 


no apparent injury 
or infestation 






apparently free 


no apparent injury 
or infestation 





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October 1, 1993 



1213 



PROPOSED RULES 



Other injurious diseases and viruses 
Root knot and other injurious nematodes 
Insects 

Onion plants and sets 
White rot 

Other injurious diseases and viruses 
Root knot and other injurious nematodes 
Insects 

Asparagus Crowns 

Fusarium wilt and crown rot 
Other injurious diseases and viruses 
Root knot and other injurious nematodes 
Insects 



apparently free 


no apparent injury 
or infestation 


apparently free 


no apparent injury 
or infestation 


apparently free 


no apparent injury 
or infestation 



i 



White seed potatoes 
Field inspection: 

Leaf roll 

Mosaic 

Spindle tuber 

PVYN 



2 Percent 
2 Percent 

2 Percent 
.75 Percent 

3 Percent 



1 Percent 
Percent 
.5 Percent 
a flush through system for PVYN 



Total viruses 
Black leg and wilts 
Bacterial ring rot 
Varietal mixture 
White seed potatoes must be grown in a certified seed program utilizing 
when this virus disease has been reported in a state or province. 
Tuber inspection: 

Not more than a total of five percent by weight shall be allowed for excessive damage resulting in the 
following defects: 
Flea beetle injury 
Rhizoctonia 
Pitted scab 
Russet scab 
Surface scab 
Wireworm damage 
Insects or worms inside potato 
dirt 

Provided, that included in this five percent tolerance not more than the percentages by weight shall be 
allowed for the defects listed below: 
Defect 

Bacterial ring rot 

Damage caused by dry or moist type 
Fusarium tuber rot 
Late blight tuber rot 
Nematode or tuber moth injury 
Varietal mixture 
Frozen soft rot or web breakdown 



i 



Percent 



2 Percent 
1 Percent 

Percent 
.5 Percent 

1 Percent 



Statutory Authority G.S. 106-65.45; 106-65.46; 106-284.18; 106-420. 
CHAPTER 52 - VETERINARY DIVISION SUBCHAPTER 52B - ANIMAL DISEASE 



I 



1214 



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NORTH CAROLINA REGISTER 



October 1, 1993 



PROPOSED RULES 



SECTION .0200 - ADMISSION OF 
LIVESTOCK TO NORTH CAROLINA 

.0210 IMPORTATION REQUIREMENTS: 
AVIAN SPECIES 

Members of the avian species, other than chick- 
ens, turkeys, or other domestic poultry, entering 
into North Carolina shall be accompanied by a 
permit from the State Veterinarian of North Caro- 
lina or his authorized representative and be accom- 
panied by an official interstate health certificate 
issued within five days of shipment. Ratites 
(ostriches, rheas, emus, cassowaries and kiwis) 
must have a negative test for Avian Influenza (AI) 
within 30 days prior to entry. 
Note: For chickens, turkeys or other domestic 
poultry, see 2 NCAC 52B .0600. 



Statutory Authority G. S. 
106-543. 



106-539; 106-540; 



CHAPTER 53 - AQUACULTURE 

.0001 AQUACULTURE LICENSES 

(a) A person who owns or operates an 
aquaculture facility for the purpose of possession, 
production, transportation, sale or commercial 
catchout of the species listed in G.S. 106-761, 
shall obtain a license from the Department of 
Agriculture. 

(b) Applications for licenses may be obtained 
from the Department of Agriculture, Division of 
Aquaculture and Natural Resources, P.O. Box 
27647. Raleigh, NC 27611. Completed 
a pplications should be returned to the same 
address. 

(c) The application shall include: 

(1) License(s) being requested: 

(A) Aquatic Propagation and Production 
Facility License; 

(B) Commercial Catchout License; 

(C) Holding Pond/Tank Permit; 

(2) Name of facility; 

(3) County of facility; 

(4) Address and telephone number of 
facility; 

(5) Name of responsible agent for the 
facility; 

(6) Address and telephone number of 
responsible agent; 

£7} Description of primary activities at the 
facility (hatchery, gamefish production, 
catchout, food fish production, etc.); 

(8) Primary species to be possessed on the 
facility. 



(d) An Aquaculture Propagation and Production 
Facility License must be obtained for all 
freshwater aquaculture facilities as defined in G.S. 
106-758(2) except for Commercial Catchout and 
Holding Pond/Tank operations. The license shall 
be issued without charge and shall be valid for five 
years. 

(e) A Commercial Catchout Facility License 
must be obtained for a privately owned pond, lake, 
raceway, manmade stream or other water holding 
facility where fish are stocked for the purpose of 
harvest by hook and line. Such facilities sell the 
fish on a fee per unit time basis or fee per unit 
weight basis. This does not include privately 
owned ponds where fish populations naturally 
regenerate. 

(1) Receipts shall be provided to the 
purchasers of fish from Commercial 
Catchout Facilities. The receipt shall 
include the name of the facility, the 
date and the number, species and 
weight of the fish sold. 

(2) No fish taken from a Commercial 
Catchout Facility may be resold by the 
purchasing angler for any reason. 

(3) The license shall be issued without 
charge and shall be valid for five years. 

(f) A Holding Pond/Tank Permit shall be 
obtained for all facilities holding live food or bait 
species for sale, except those facilities which are 
licensed as Aquaculture Propagation and 
Production Facilities. This permit shall be valid 
for two years and shall be issued without charge. 

Statutory Authority G.S. 106-761. 

TITLE 10 - DEPARTMENT OF 
HUMAN RESOURCES 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the DHR/Division of Facility 
Services intends to amend rule cited as 10 NCAC 
3R.0320. 

1 he proposed effective date of this action is 
January 4, 1994 

1 he public hearing will be conducted at 10:00 
a.m. on October 29, 1993 at the Council Building, 
Room 201, 701 Barbour Drive, Raleigh, NC 
27603. 



8:13 



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October 1, 1993 



1215 



PROPOSED RULES 



Keason for Proposed Action: Agency is initiating 
rule-making proceedings as the result of the rule- 
making petition submitted by Hospital Resource 
Home Health Agency. 

i^onunent Procedures : All written comments must 
be submitted to Jackie Sheppard, APA Coordina- 
tor, Division of Facility Services, PO Box 29530, 
Raleigh, NC 27626-0530, telephone (919) 733- 
2342, up to and including November 1, 1993. 
Written comments submitted after the deadline will 
not be considered. 

CHAPTER 3 - FACILITY SERVICES 

SUBCHAPTER 3R - CERTIFICATE 
OF NEED REGULATIONS 



(C) the home health agency may provide 
services to patients in counties contig- 
uous to its service area who initiate 
contact with the home health agency 
and request its services. 
(2) Where the service area is not identified 
on the certificate of need issued to the 
home health agency, the agency's geo- 
graphic service area shall be the pro- 
posed geographic service area which 
was identified in the application for a 
certificate of need and approved by 
Certificate of Need Section, with the 
exceptions set forth in Subparagraph 
(b)(1) of this Rule. 



Statutory Authority G. S. 
131E-185. 



131E-177(1); 131E-181; 



SECTION .0300 - APPLICATION 
AND REVIEW PROCESS 

.0320 HOME HEALTH AGENCIES 

(a) For those home health agencies for which no 
certificate of need was issued, the home health 
agency's geographic service area shall be only 
those counties in which patients were served as 
shown on the existing home health agency's 
licensure renewal form on file with the Licensure 
Section of the Division of Facility Services as of 
January 1, 1991. 

(b) For those home health agencies for which a 
certificate of need was issued, the home health 
agency's geographic service area shall be as 
follows: 

(1) Where the service area is identified on 
the certificate of need issued to the 
home health agency, the agency's geo- 
graphic service area shall be the service 
area identified on the certificate of 
need, with the following exceptions: 

(A) If the home health agency has an 
agreement with a health service fac i 1 i - 
ty_ to provide services to its patients, 
the home health agency may provide 
services to those patients outside the 
service area identified on the certifi- 
cate of need; 

(B) the home health agency may provide 
services to patients outside the identi- 
fied service area who are referred by 
physicians who practice in the county 
where the home health agency has its 
office; and 



****************** 

iSotice is hereby given in accordance with G.S. 
150B-21.2 that the DHRI Division of Facility 
Services intends to amend rule cited as 10 NCAC 
42 C. 3503. 

1 he proposed effective date of this action is 
January 4. 1994. 

1 he public hearing will be conducted at 1:00 
p.m. on November 17, 1993 at the Council Build- 
ing, Room 201, 701 Barbour Drive, Raleigh, NC 
27603. 

Ixeason for Proposed Action: To remove the 
provision which allows a suspension of admission 
to be stayed automatically when a facility files a 
petition for a contested case hearing. 

I^onvnent Procedures: All written comments must 
be submitted to Mr. Jackie R. Sheppard, APA 
Coordinator, P.O. Box 29530. Raleigh, NC 
27626-0530, up to and including November 17, 
1993. Written comments submitted after the 
deadline will not be considered. 

CHAPTER 42 - INDIVIDUAL AND 
FAMILY SUPPORT 

SUBCHAPTER 42C - LICENSING 
OF FAMILY CARE HOMES 



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NORTH CAROLINA REGISTER 



October 1, 1993 



PROPOSED RULES 



SECTION .3500 - SUSPENSION 
OF ADMISSIONS 

.3503 PROCEDURE FOR APPEAL 

A domiciliary home may appeal the decision of 
the Secretary or his designee to suspend new 
admissions by making such an appeal in accor- 
dance with 10 NCAC IB .0200. If a hearing is 
requested, the suapenaion will not be effective until 
the matter is resolved . 

Statutory Authority G.S. 130-9.7(e). 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the DHR/ Commission for Mental 
Health, Developmental Disabilities and Substance 
Abuse Services intends to adopt rules cited as 10 
NCAC 140 .0701 - .0710; 18N .0601 - .0605, 
.0701 - .0709; amend rules cited as 14K .0103, 
.0201, .0342, .0402 - .0403; 14M .0709, .0715 - 
.0716; 14Q.0305; 18D .0209; 18Q .0520, .0540 - 
.0541; 45G .0104; and repeal rules cited as 10 
NCAC 14L .0501 - .0508; 14M .0201 - .0210, 
.0301 - .0304, .0401 - .0410; 14N .0601 - .0607; 
140 .0101 - .0109, .0201 - .0212; 18Q .0709 - 
.0715, .0801 - .0805, .0807 - .0813. 



A he proposed effective date of this action i, 
January 1 , 1994. 



is 



1 he public hearing will be conducted at 1:00 
p.m. on November 9, 1993 at the Holiday Inn - 
Crabtree, 4100 Glenwood Avenue, Tulleriesl- 
Covenant Gardens Room, Raleigh, N. C 27612. 

MXeason for Proposed Action: 
The following Rules are being proposed for adop- 
tion, amendment or repeal, and are part of a 
package referred to as "Supervised Living. " 
It has been several years since the Division has 
undertaken a major review of Licensure Rules and 
Standards regarding "Residential Services" for 
clients served by the mental health, developmental 
disabilities and substance abuse services system. 
Since that time, significant trends in the fields of 
mental health and developmental disabilities, in 
particular, have occurred which refocus philoso- 
phies and purposes of working with clients to assist 
them in maximizing their choices regarding both 
their treatment and where they live. In addition to 



new attitudes regarding client choice there contin- 
ues to be emerging understanding of the capacities 
and strengths of clients and orientations toward 
independence, autonomy and dignity. 
The adoption of the N. C. State Medicaid Plan to 
cover area program services under the Rehabilita- 
tion Option has encouraged the delivery of services 
in a variety of locations, including clients ' homes. 
The "unbundling " of costs of services from the 
costs of the facility in which they are provided 
further reinforces this paradigm shift. 
The proposed adoption, amendment, or repeal of 
the following Rules are designed to 1) eliminate 
several existing categories of licensure rules and 
standards; 2) define a single new broad category 
in which the primary purpose is either supervision, 
habilitation or rehabilitation; and 3) establish 
through a new standard, expectations regarding 
the delivery of support services to clients in their 
homes whether their home is owned by the client, 
the client 's family, the area program, a contract 
agency, or an independent landlord. 

Subject of Rules: SUPERVISED LIVING 

Licensure Rules: 

10 NCAC 14K .0103, .0201, .0402 - .0403 

10 NCAC 14L .0501 - .0508 

10 NCAC 14M .0201 - .0210 

10 NCAC 14M .0301 - .0304 

10 NCAC 14M .0401 - .0410 

10 NCAC 14N .0601 - .0607 

10 NCAC 140 .0101 - .0109 

10 NCAC 140 .0201 - .0212 

10 NCAC 140 .0701 - .0710 

Standards for Area Programs and Their Contract 

Agencies: 

Standards: 

10 NCAC 18N .0601 - .0605 

10 NCAC 18N .0701 - .0709 

10 NCAC 18Q .0709 - .0715 

10 NCAC 18Q .0801 - .0805 

10 NCAC 18Q .0807 - .0813 

Subject of Rules: RESPITE SERVICES (including 
Center-based , Private Home, and Companion 
Models) 

The following Rules are contained in Licensure 
and Standards and are proposed for amendment 
to: 1) provide clarification; 2) avoid duplication of 
administrative requirements; 3) more accurately 
describe services by using the term "support 
services"; and 4) describe services in a more 
normalizing manner. 
Licensure Rules: 
10 NCAC 14K .0342 



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PROPOSED RULES 



10 NCAC 14M .0709 

10 NCAC 14M .0715 - .0716 

Standards: 

10 NCAC 18Q .0520 

10 NCAC 18Q .0540 - .0541 

Subject of Rule: Client Rights in Community 
Mental Health , Developmental Disabilities and 

Substance Abuse Services 
The following Rule is proposed for amendment to 
qualify what constitutes grounds for dismissal of an 
employee, and to be specific in providing informa- 
tion to employees and clients regarding further 
protection for clients from harm, abuse, neglect or 
exploitation. 
Client Rights Rule: 
10 NCAC 14Q .0305 

Subject of Rule: Confidentiality Rules 
The following Rule is proposed for amendment to 
clarify the content to be consistent with the intent 
of G.S. 122C-53(i) regarding release of informa- 
tion by an adult client who has been adjudicated 
incompetent. The Rule, as it currently exists, 
conflicts with statute. 
Confidentiality Rule: 
10 NCAC 18D .0209 

Subject of Rule: Controlled Substances 
The following Rule is proposed for amendment to 
incorporate a registration fee, based on the re- 
quirement set forth in Senate Bill 621 of Session 
1993 of the General Assembly of North Carolina. 
Controlled Substance Rule: 
10 NCAC 45G .0104 

Comment Procedures: Any interested person may 
present comments by oral presentation or submit- 
ting a written statement. Persons wishing to make 
oral presentations should contact Charlotte Tucker, 
Division of Mental Health, Developmental Disabil- 
ities and Substance Abuse Services, 325 N. Salis- 
bury St., Raleigh, N.C. 27603, 919-733-4774. 
Comments submitted as a written statement must 
be sent to the above address no later than Novem- 
ber 9, 1993, and must state the Rules to which the 
comments are addressed. Time limits for oral 
remarks may be imposed. Fiscal information 
regarding these Rules is available from the Divi- 
sion, upon request. 

CHAPTER 14 - MENTAL HEALTH: 
GENERAL 



SUBCHAPTER 14K - CORE LICENSURE 

RULES FOR MENTAL HEALTH: 

MENTAL RETARDATION AND 

OTHER DEVELOPMENTAL 

DISABILITIES: AND SUBSTANCE 

ABUSE FACILITIES 

SECTION .0100 - GENERAL 
INFORMATION 

.0103 DEFINITIONS 

(a) This Rule contains the definitions that apply 
to all the rules in this Subchapter and Subchapters 
14L through 140 of this Chapter. 

(b) In addition to the definitions contained in 
this Rule, the terms defined in G.S. 122C-3 also 
apply to all the rules in this Subchapter and Sub- 
chapters 14L through 140 of this Chapter. 

(c)The following terms shall have the meanings 
specified: 

(1) "Administering medication" means 
direct application of a drug to the body 
of a client by injection, inhalation, 
ingestion, or any other means. 

(2) "Adolescent" means a minor from 13 
through 17 years of age. 

(3) "Adult" means a person 18 years of age 
or older or a person under 18 years of 
age who has been married or who has 
been emancipated by a court of compe- 
tent jurisdiction or is a member of the 
armed forces. 

(4) "Aftercare" means those services pro- 
vided to substance abuse clients after 
discharge from a service which facili- 
tates the client's integration or reinte- 
gration into society. Activities may 
include self-help groups, supportive 
work programs and staff follow-up 
contacts and interventions. 

(5) "Alcohol abuse" means psychoactive 
substance abuse which is a residual 
category for noting maladaptive patterns 
of psychoactive substance use that have 
never met the criteria for dependence 
for that particular class of substance 
(criteria delineated in the 1987 edition 
of DSM-III-R published by the Ameri- 
can Psychiatric Association, 1400 K 
Street, N.W., Washington, D.C. 20005 
at a cost of $29.95 for the soft cover 
edition and $39.95 for the hard cover 
edition.) This adoption by reference 
does not include subsequent amend- 
ments and editions of the referenced 



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PROPOSED RULES 



material. 

(6) "Alcohol dependence" means psychoac- 
tive substance dependence which is a 
cluster of cognitive behavioral, and 
physiologic symptoms that indicate that 
a person has impaired control of psy- 
choactive substance use and continues 
use of the substance despite adverse 
consequences (criteria delineated in the 
1987 edition of DSM-III-R published by 
the American Psychiatric Association, 
1400 K Street, N.W., Washington, 
D.C. 20005 at a cost of $29.95 for the 
soft cover edition and $39.95 for the 
hard cover edition.) This adoption by 
reference does not include subsequent 
amendments and editions of the refer- 
enced material. 

(7) "Applicant" means any person who 
intends to establish, maintain or operate 
a licensable facility and who applies to 
the department for a license to operate 
a facility under the provisions of G.S. 
122C, Article 2. 

(8) "Approved supported employment 
conversion plan" means a planned 
approach to changing the type of servic- 
es delivered from ADAP facility-based 
to supported employment. Approval of 
the conversion plan is the responsibility 
of the Regional Director of the Division 
and the Area Director or his designee if 
the facility is operated by a contract 
agency of the area program or other 
service provider. The Division shall 
request appropriate personnel from the 
Division of Vocational Rehabilitation to 
participate in the review process. The 
request for approval of the supported 
employment conversion plan shall 
include specific written information in 
the following areas: 

(A) number of clients to be moved into 
supported employment placements; 

(B) types of supported employment mod- 
els to be used; 

(C) time frame for the conversion period; 

(D) interim proposed facility staffing 
patterns and responsibilities; and 

(E) proposed budget for conversion plan. 

(9) "Area program" means a legally consti- 
tuted public agency providing mental 
health, mental retardation and substance 
abuse services for a catchment area 
designated by the commission. For 



purposes of these Rules, the term "area 
program" means the same as "area 
authority" as defined in G.S. 122C-3. 

(10) "Assessment" means a procedure for 
determining the nature and extent of the 
problem for which the individual is 
seeking service. 

(11) "Atypical development" in children 
means those from birth to 60 months of 
age who: 

(A) have autism; 

(B) are diagnosed hyperactive; 

(C) have an attention deficit disorder or 
other behavioral disorders; or 

(D) exhibit evidence of, or are at risk for, 
atypical patterns of behavior and 
social-emotional development in one 
or more of the following areas: 

(i) delays or abnormalities in achiev- 
ing emotional milestones; 
(ii) difficulties with: 

(I) attachment and interactions 
with parents, other adults, 
peers, materials and objects; 

(II) ability to communicate emo- 
tional needs; 

(III) motor or sensory development; 

(IV) ability to tolerate frustration 
and control behavior; or 

(V) ability to inhibit agression; 
(iii) fearfulness, withdrawal, or other 

distress that does not respond to 

the comforting of caregivers; 
(iv) indiscriminate sociability; for 

example, excessive familiarity 

with relative strangers; 
(v) self-injurious or other aggressive 

behavior; 
(vi) substantiated evidence that raises 

concern for the child's emotional 

well-being regarding: 

(I) physical abuse; 

(II) sexual abuse; or 

(III) other invironmental situations; 
as defined in G.S. 7A-517(1) and 
(21). 

(12) "Certified counselor" means an alcohol- 
ism, drug abuse or substance abuse 
counselor who is certified by the North 
Carolina Substance Abuse Professional 
Certification Board. 

(13) "Child" means a minor from birth 
through 1 2 years of age. 

(14) "Chronically mentally ill adult" means 
an individual 18 years of age or older 



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PROPOSED RULES 



who, as a result of a mental disorder, 
exhibits emotional or behavioral func- 
tioning which is so impaired as to 
interfere substantially with his capacity 
to remain in the community without 
supportive treatment or services of a 
long-term or indefinite duration. In 
these persons, mental disability is se- 
vere and persistent, resulting in long- 
term limitation of their functional ca- 
pacities for primary activities of daily 
living such as interpersonal relations, 
homemaking, self-care, employment 
and recreation. 

(15) "Client record" means a written account 
of all services provided a client from 
the time of admission of the client by 
the facility until discharge from the 
facility. 

(16) "Clinical" means having to do with the 
active direct treatment/habilitation of a 
client. 

(17) "Clinical staff member" means a pro- 
fessional who provides active direct 
treatment/habilitation to a client. 

(18) "Clinical/professional supervision" 
means regularly scheduled assistance by 
a qualified mental health professional, 
a qualified substance abuse professional 
or a qualified developmental disabilities 
professional to a staff member who is 
providing direct, therapeutic interven- 
tion to a client or clients. The purpose 
of clinical supervision is to ensure that 
each client receives appropriate treat- 
ment or habilitation which is consistent 
with accepted standards of practice and 
the needs of the client. 

(19) "Contested case" means an administra- 
tive proceeding under G.S. 150B, 
Article 3, in which the rights, privileg- 
es, or duties of a party are required by 
law to be determined. 

(20) "Contract agency" means a legally 
constituted entity with which the area 
program contracts for a service exclu- 
sive of intermittent purchase of service 
for an individually identified client. 

(21) "Day/night service" means a service 
provided on a regular basis, in a struc- 
tured environment that is offered to the 
same individual for a period of three or 
more hours within a 24-hour period. 

(22) "Declaratory ruling" means a formal 
and binding interpretation as to: 



(A) the validity of a rule; or 

(B) the applicability to a given state of 
facts of a statute administered by the 
Department of Human Resources, or 
a rule or order of the Department of 
Human Resources. 

(23) "Detoxification" means the physical 
withdrawal of an individual from alco- 
hol or other drugs in order that the 
individual can participate in rehabilita- 
tion activities. 

(24) "Developmentally delayed children" 
means those whose development is 
delayed in one or more of the following 
areas: cognitive development; physical 
development, including vision and 
hearing; communication, social and 
emotional; and adaptive skills. The 
specific level of delay must be: 

(A) for children from birth to 36 months 
of age, documented by scores one and 
one-half standard deviations below the 
mean on standardized tests in at least 
one of the above areas of develop- 
ment. Or, it may be documented by 
a 20 percent delay on assessment 
instruments that yield scores in 
months; and 

(B) for children from 36 to 60 months of 
age, documented by test performance 
two standard deviations below the 
mean on standardized tests in one area 
of development or by performance 
that is one standard deviation below 
the norm in two areas of develop- 
ment. Or, it may be documented by 
a 25 percent delay in two areas on 
assessment instruments that yield 
scores in months. 

(25) "DFS" means the Division of Facility 
Services, 701 Barbour Drive, Raleigh, 
N.C. 27603. 

(26) "Direct care staff" means an individual 
who provides active direct care, treat- 
ment, rehabilitation or habilitation 
services to clients. 

(27) "Dispensing medication" means prepar- 
ing and packaging a prescription drug 
or device in a container and labeling the 
container with information required by 
state and federal law. Filling or refill- 
ing drug containers with prescription 
drugs for subsequent use by a client is 
"dispensing." Providing quantities of 
unit dose prescription drugs for subse- 



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PROPOSED RULES 



quent administration is "dispensing." 

(28) "DMH/DD/SAS" means the Division of 
Mental Health, Developmental Disabil- 
ities, and Substance Abuse Services, 
325 N. Salisbury Street, Raleigh, N.C. 
27603. 

(29) "Documentation" means provision of 
written, dated and authenticated evi- 
dence of the delivery of client services 
or compliance with statutes or rules, 
e.g., entries in the client record, poli- 
cies and procedures, minutes of meet- 
ings, memoranda, reports, schedules, 
notices and announcements. 

(30) "Drug abuse" means psychoactive 
substance abuse which is a residual 
category for noting maladaptive patterns 
of psychoactive substance use that have 
never met the criteria for dependence 
for that particular class of substance 
(criteria delineated in the 1987 edition 
of DSM-III-R published by the Ameri- 
can Psychiatric Association, 1400 K 
Street, N.W., Washington, DC. 20005 
at a cost of $29.95 for the soft cover 
edition and $39.95 for the hard cover 
edition.) This adoption by reference 
does not include subsequent amend- 
ments and editions of the referenced 
material . 

(31) "Drug dependence" means psychoactive 
substance dependence which is a cluster 
of cognitive behavioral, and physiologic 
symptoms that indicate that a person 
has impaired control of psychoactive 
substance use and continues use of the 
substance despite adverse consequences 
(criteria delineated in the 1987 edition 
of DSM-III-R published by the Ameri- 
can Psychiatric Association, 1400 K 
Street, N.W., Washington, DC. 20005 
at a cost of $29.95 for the soft cover 
edition and $39.95 for the hard cover 
edition.) This adoption by reference 
does not include subsequent amend- 
ments and editions of the referenced 
material . 

(32) "DWI" means driving while impaired, 
as defined in G.S. 20-138.1. 

(33) "DWI substance abuse assessment" 
means a service provided to persons 
charged with or convicted of DWI to 
determine the presence of chemical 
dependency. The "assessment" 
involves a face-to-face interview with a 



substance abuse professional. 

(34) "Early Intervention Services" means 
those services provided for infants and 
toddlers specified in Section 303.12 of 
Subpart A of Part 303 of Title 34 of the 
Code of Federal Regulations, published 
1/1/92 6/22/89. For the purposes of 
these services, however, transportation 
means assistance in the travel to and 
from the multidisciplinary evaluation, 
specified early intervention services 
provided by certified developmental day 
centers or other center-based services 
designed specifically for children with 
or at risk for disabilities; and speech, 
physical or occupational therapy ,or 
other early intervention services if 
provided in a specialized setting away 
from the child's residence. Transporta- 
tion assistance may be provided by 
staff, existing public or private services 
or by the family, who shall be 
reimbursed for their expenses, in 
accordance with applicable fee 
provisions. This adoption by reference 
does not include subsequent 
amendments and editions of the 
referenced material. 

(35) "Evaluation" means an assessment 
service which identifies the nature and 
extent of an individual's problem 
through a systematic appraisal, for the 
purposes of diagnosis and determination 
of the disability of the individual and 
the most appropriate plan, if any, for 
services. 

(36) "First aid" means emergency treatment 
for injury or sudden illness before 
regular medical care is available. First 
aid includes artificial respiration, the 
Heimlich maneuver, or other Red Cross 
first aid techniques for relieving airway 
obstruction, care of wounds and burns, 
and temporary administering of splints. 

(37) "Governing body" means, in the case of 
a corporation, the board of directors; in 
the case of an area authority, the area 
board; and in all other cases, the owner 
of the facility . 

(38) "Health Services" means those services 
provided for infants and toddlers 
specified in Section 303.13 of Subpart 
A of Part 303 of Title 34 of the Code 
of Federal Regulations, published 
6/22/89. This adoption by reference 



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PROPOSED RULES 



does not include subsequent 
amendments and editions of the 
referenced material. 

(39) "Hearing" means, unless otherwise 
specified, a contested case hearing 
under G.S. 150B, Article 3. 

(40) "High risk children" means those from 
birth to 36 months of age for whom 
there is clinical evidence of conditions 
which have a high probability of 
resulting in developmental delay or 
atypical development and for whom 
there is clinical evidence that 
developmental or therapeutic 
intervention may be necessary. There 
are two categories of high risk children. 
These are: 

(A) High Risk-Established: Diagnosed or 
documented physical or mental 
conditions which are known to result 
in developmental delay or atypical 
development as the child matures. 
Such conditions include, but need not 
be limited to are limited to the 
following: 

(i) chromosomal anomaly or genetic 

disorders associated with 

developmental deficits; 
(ii) metabolic disorders associated 

with developmental deficits; 
(iii) infectious diseases associated with 

developmental deficits; 
(iv) neurologic disorders; 
(v) congenital malformations; 
(vi) sensory disorders; or 
(vii) toxic exposure; or . 
(viii) severe attachment disorders. 

(B) High Risk-Potential: Documented 
presence of indicators which are 
associated with patterns of 
development and which have a high 
probability of meeting the criteria for 
developmental delay or atypical 
development as the child matures. 
There shall be documentation of at 
least three of the parental or family, 
neonatal, or postneonatal risk 
conditions as defined on page 12 in 
the 1990 publication, "NORTH 
CAROLINA CHILD SERVICE 
COORDINATION PROGRAM" 
available from the Division of 
Maternal and Child Health, 
Department of Environment, Health 
and Natural Resources, PO Box 



27687, Raleigh, NC 27611-7687. 
This adoption by reference does not 
include subsequent amendments and 
editions of the referenced material. 
These conditions are as follows: 
(i) maternal age less than 15 years; 
(ii) maternal PKU; 
(iii) mother HIV positive; 
(iv) maternal use of anticonvulsant, 
antineoplastic or anticoagulant 
drugs; 
(v) parental blindness; 
(vi) parental substance abuse; 
(vii) parental mental retardation; 
(viii) parental mental illness; 
(ix) difficulty in parental or infant 

bonding; 
(x) difficulty in providing basic 

parenting; 
(xi) lack of stable housing; 
(xii) lack of familial and social sup- 
port; 
(xiii) family history of childhood deaf- 
ness; 
(xiv) maternal hepatitis B; 
(xv) birth weight less than 1500 grams; 
(xvi) gestational age less than 32 

weeks; 
(xvii) respiratory distress (mechanical 
ventilator greater than six hours); 
(xviii) asphyxia; 
(xix) hypoglycemia (less than 25 

mg/dl); 
(xx) hyperbilirubinemia (greater than 

20 mg/dl); 
(xxi) intracranial hemorrhage; 
(xxii) neonatal seizures; 
(xxiii) major congenital anomalies: 
(xxiv) CNS infection or trauma; 
(xxv) congenitally acquired infection; 
(xxvi) suspected visual impairment; 
(xxvii) suspected hearing impairment; 
(xxviii) no well child care by age six 

months; 
(xxix) failure on standard developmen 

tal or sensory screening test; 
(xxx) significant parental concern; and 
(xxxi) suspected abuse or neglect. 
(41) "Hours of operation" means an indica- 
tion of the minimum operational hours 
that a service is expected to be avail- 
able to clients, but not prohibiting the 
typical closing of a service to accom- 
modate holidays, vacations, staff devel- 
opment activities and weather and 



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PROPOSED RULES 



facility-related conditions but taking 
into consideration the type of service 
being provided. 

(42) "ICF/MR" (Intermediate Care Facili- 
ty/Mentally Retarded) means a facility 
certified as having met federal ICF/MR 
requirements and which provides 24- 
hour personal care, habilitation, devel- 
opmental and supportive services to 
persons with mental retardation or 
related conditions. 

(43) "Incident" means any happening which 
is not consistent with the routine opera- 
tion of the facility or the routine care of 
a client and that is likely to lead to 
adverse effects upon a client. 

(44) "Infant" means an individual from birth 
to one year of age through two years of 
age. 

(45) "Legend drug" means a drug that can- 
not be dispensed without a prescription. 

(46) "License" means a permit to operate a 
facility which is issued by DFS under 
G.S. 122C, Article 2. 

(47) "Medication" means a substance recog- 
nized in the official "United States 
Pharmacopoeia" or "National Formu- 
lary" intended for use in the diagnosis, 
mitigation, treatment or prevention of 
disease. 

(48) "Minor client" means a person under 
1 8 years of age who has not been mar- 
ried or who has not been emancipated 
by a decree issued by a court of compe- 
tent jurisdiction or is not a member of 
the armed forces. 

(49) "Neighborhood" - See "residential 
setting". 

(50) "Nurse" means a person licensed to 
practice in the State of North Carolina 
either as a registered nurse or as a 
licensed practical nurse. 

(51) "Operator" means the designated agent 
of the governing body who is responsi- 
ble for the management of a licensable 
facility. 

(52) "Outpatient" or "Outpatient service" 
means the same as periodic service. 

(53) "Parent" means the legally responsible 
person unless otherwise clear from the 
context . 

(54) "Periodic service" means a service 
provided through short, recurring visits 
for persons who are mentally ill, devel- 
opmentally disabled or substance abus- 



ers. 
(55) "Personal assistance" means providing 
assistance to a client who is mentally 
ill, has a developmental disability or 
disabilities, or is a substance abuser, in 
order that the client can engage in 
activities and interactions from which 
the client would otherwise be limited or 
excluded because of the disability or 
disabilities. The assistance shall in- 
clude, but need not be limited to: 

(A) assistance in personal or regular 
living activities in the client's home; 

(B) su pport in skill development; or 

(C) support and accompaniment of the 
client in regular community activities 
or in specialized treatment, habilita- 
tion or rehabilitation service 
programs. 

(565) "Physical examination" means the 
procedures used by a physician or 
physician extender on behalf of a physi- 
cian to determine the physiological and 
anatomical condition of the client. 
Physical examination also means 
medical examination. 

(576) "Physician extender" means a nurse 
practitioner or a physician assistant 
approved to perform medical acts by 
the Board of Medical Examiners of the 
State of North Carolina. 

(583) "Preschool age child" means a child 
from three through five years of age. 

(598) "Private facility" means a facility not 
operated by or under contract with an 
area program. 

(6059) "Program evaluation" means the 
systematic documented assessment of 
program activity to determine the effec- 
tiveness, efficiency and scope of the 
system under investigation, to define its 
strengths and weaknesses and thereby to 
provide a basis for informed decision- 
making. 

(610) "Provider" means an individual, agency 
or organization that provides mental 
health, mental retardation or substance 
abuse services. 

(62+) "Psychiatric nurse" means an individual 
who is licensed to practice as a 
registered nurse in the State of North 
Carolina by the North Carolina Board 
of Nursing and who is a graduate of an 
accredited master's level program in 
psychiatric mental health nursing with 



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PROPOSED RULES 



two years of experience, or has a 
master's degree in behavioral science 
with two years of supervised clinical 
experience, or has four years of 
experience in psychiatric mental health 
nursing. 

(633) "Psychiatric social worker" means an 
individual who holds a master's degree 
in social work from an accredited 
school of social work and has two years 
of clinical social work experience. 

(643) "Psychiatrist" means an individual who 
is licensed to practice medicine in the 
State of North Carolina and who has 
completed an accredited training 
program in psychiatry. 

(654) "Psychotherapy" means a form of 
treatment of mental illness or emotional 
disorders which is based primarily upon 
verbal or non-verbal communication 
with the patient. Treatment is provided 
by a trained professional for the 
purpose of removing or modifying 
existing symptoms, of attenuating or 
reversing disturbed patterns of 
behavior, and of promoting positive 
personality growth and development. 

(665) "Psychotropic medication" means 
medication with the primary function of 
treating mental illness, personality or 
behavior disorders. These medications 
include, but are not limited to, 
antipsychotics, antidepres- sants, 
neuroleptics, lithium and minor 
tranquilizers. 

(676) "Qualified alcoholism professional" 
means an individual who is certified by 
the North Carolina Substance Abuse 
Professional Certification Board or who 
is a graduate of a college or university 
with a baccalaureate or advanced 
degree in a human service related field 
with documentation of at least two 
years of supervised experience in the 
profession of alcoholism counseling. 

(687) "Qualified developmental disabilities 
professional" means an individual 
holding at least a baccalaureate degree 
in a discipline related to developmental 
disabilities, and at least two years of 
supervised habilitative experience in 
working with the mentally retarded or 
otherwise developmentally disabled or 
holding a baccalaureate degree in a 
field other than one related to 



developmental disabilities and having 
three years of supervised experience in 
working with the mentally retarded or 
otherwise developmentally disabled. 

(698) "Qualified drug abuse professional" 
means an individual who is certified by 
the North Carolina Substance Abuse 
Professional Certification Board or who 
is a graduate of a college or university 
with a baccalaureate or advanced 
degree in a human service related field 
with documentation of at least two 
years of supervised experience in the 
profession of drug abuse counseling. 

(7069) "Qualified mental health professional" 
means any one of the following: 
psychiatrist, psychiatric nurse, 
practicing psychologist, psychiatric 
social worker, an individual with at 
least a master's degree in a related 
human service field and two years of 
supervised clinical experience in mental 
health services or an individual with a 
baccalaureate degree in a related human 
service field and four years of 
supervised clinical experience in mental 
health services. 

(719) "Qualified nutritionist" means an 
individual who has a Master's degree in 
nutrition, nutrition education or public 
health nutrition and who may or may 
not be a registered dietitian. 

(72+) "Qualified substance abuse 
professional" means an individual who 
is: 

(A) certified by the North Carolina 
Substance Abuse Professional 
Certification Board; or 

(B) a graduate of a college or university 
with a baccalaureate or advanced 
degree in a human service related 
field with documentation of at least 
two years of supervised experience in 
the profession of alcoholism and drug 
abuse counseling. 

(733) "Registered dietitian" means an 
individual who has successfully 
completed a national examination for 
the Commission on Dietetic 
Registration and maintains registration 
with that commission through approved 
continuing education activities and 
events. 

(743) "Rehabilitation" means training, care 
and specialized therapies undertaken to 



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PROPOSED RULES 



assist a client to reacquire or maximize 
any or all lost skills or functional 
abilities. 

(754) "Research" means inquiry involving a 
trial or special observation made under 
conditions determined by the 
investigator to confirm or disprove a 
hypothesis, or to explicate some 
principle or effect. The term "research" 
as used in this document means 
research which is not standard or 
conventional; involves a trial or special 
observation which would place the 
subject at risk for injury (physical, 
psychological or social injury), or 
increase the chance of disclosure of 
treatment; utilizes elements or steps not 
ordinarily employed by qualified 
professionals treating similar disorders 
of this population; or is a type of 
procedure that serves the purpose of the 
research only and does not include 
treatment designed primarily to benefit 
the individual. 

(765) "Residential setting" means a living 
area or zone in which the primary 
purpose is family residential living and 
which may be located in an area zoned 
either urban residential or rural. 

(776) "Respite discharge" means that point in 
time when no additional incidents of 
respite services are anticipated . 

(787) "Respite episode" means an 
uninterrupted period of time during 
which a client receives respite services. 

(798) "Screening" means an assessment 
service which provides for a brief 
appraisal of each individual who 
presents himself for services, in order 
to determine the nature of the 
individual's problem and his need for 
services. Screening may also include 
referral to other appropriate community 
resources. 

(8079) "Secretary" means the Secretary of the 
Department of Human Resources or 
designee. 

(819) "Service" means an activity or 
interaction intended to benefit another, 
with, or in behalf of, an individual who 
is in need of assistance, care, 
habilitation, intervention, rehabilitation 
or treatment. 

(824-) "Severely physically disabled person" 



means for the purpose of ADAP (Adult 
Developmental Activity Program) a 
person: 

(A) who has a severe physical disability 
which seriously limits his functional 
capabilities (mobility, communication, 
self-care, self-direction, work 
tolerance or work skills); 

(B) who has one or more physical 
disabilities resulting from amputation, 
arthritis, blindness, cancer, cerebral 
palsy, cystic fibrosis, deafness, heart 
disease, hemiplegia, hemophilia, 
respiratory or pulmonary dysfunction, 
multiple sclerosis, muscular 
distrophy, musculoskeletal disorders, 
neurological disorders (including 
stroke and epilepsy), paraplegia, 
quadriplegia, and other spinal cord 
conditions, sickle cell anemia and end 
stage renal disease; and 

(C) whose habilitation or rehabilitation 
can be expected to require multiple 
habilitation or rehabilitation services 
over an extended period of time. 

(833) "Sheltered employment" means a 
facility's provision of work and work 
training by: 

(A) subcontracting from industries in the 
community and bringing work to the 
facility to be performed; or 

(B) manufacturing its own products in the 
facility. Clients served in a sheltered 
employment model are those who 
consistently achieve earning levels 
exceeding one-half of the minimum 
wage but who are not ready for 
independent employment activities. 

(843) "Staff member" means any individual 
who is employed by the facility. 

(854) "Substantially mentally retarded person" 
means for the purpose of ADAP a 
person who is mentally retarded to the 
degree of seriously limiting his 
functional capabilities, whose 
habilitation or rehabilitation can be 
expected to extend over a period of 
time, and including: 

(A) moderately mentally retarded persons; 

(B) severely mentally retarded persons; 

(C) profoundly mentally retarded persons; 
or 

(D) mentally retarded persons with a 
handicapping condition so severe as to 
lack the potential for employment at 



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1225 



PROPOSED RULES 



this time, either in a sheltered or 
competitive setting. In addition, such 
individuals must have a deficit in self- 
help, communication, socialization or 
occupational skills and be 
recommended by the vocational 
rehabilitation counselor for 
consideration of placement in an 
ADAP. 
(865) "Support services" means services 
provided to enhance an individual's 
progress in his primary treatment/ 
habilitation program. 
(876) "Supported employment" means a 
day/night service which involves paid 
work in a job which would otherwise 
be done by a non-disabled worker. 
Supported employment is carried out in 
an integrated work site where a small 
number of people with disabilities work 
together and where the work site is not 
immediately adjacent to another 
program serving persons with 
disabilities. It includes intensive 
involvement of staff working with the 
individuals in these integrated settings. 
(88-7) "Toddler" means an individual from 

one through two three years of age. 

(898) "Treatment" means the process of 

providing for the physical, emotional, 

psychological and social needs of 

clients through services. 

(9089) "Treatment/habilitation plan" means a 

plan in which one or more 

professionals, privileged in accordance 

with 10 NCAC 14K .0319, working 

with the client and, in some cases, 

family members or other service 

providers, document which 

interventions will be provided and the 

goals, objectives and strategies that will 

be followed in providing services to the 

client. 

(9J_9) "Twenty-four hour facility in which 

medical care is an integral component" 

means a facility in which: 

(A) the medication needs of clients may 

be evaluated, medication prescribed 

and laboratory tests ordered to assist 

in the diagnosis, treatment and 

monitoring of problems associated 

with the mental health, mental 

retardation or other developmental 

disabilities or substance abuse 

disorder of clients; and 



(B) proper referral of the client is made to 
medical specialists when needed. 
(924-) "Twenty-four hour service" means a 
service which is provided to a client on 
a 24-hour continuous basis. 

Statutory Authority G.S. 122C-3; 133C-26; 143B- 

147. 

SECTION .0200 - LICENSURE 

.0201 LICENSE REQUIRED 

(a) No person shall establish, maintain or 
operate a licensable facility for the mentally ill, 
mentally retarded or otherwise developmentally 
disabled or substance abusers without first 
obtaining a license from the Division of Facility 
Services, 701 Barbour Drive, Raleigh, N.C. 
27603. 

(b) In accordance with G.S. 122C-3(14) a 
facility shall be licensed if the primary purpose of 
the facility is to provide services for the care, 
treatment, habilitation or rehabilitation for one or 
more minors, or for two or more adults who are 
mentally ill, developmentally disabled or are 
substance abusers as follows: 

(1) When the primary purpose of a 24-hour 
facility is to provide treatment, the 
facility shall be licensed in accordance 
with rules specific to the type of 
treatment provided or the population 
served; or 

(2) When the primary purpose of a 24-hour 
facility is to provide habilitation. 
rehabilitation, or care; thereby 
necessitating the presence of an 
employee who will act in the client's 
behalf when necessary, the facility shall 
be licensed under the provisions of 10 
NCAC 140 .0700 - Supervised Living. 

(c) Living arrangements that may be 
coordinated, organized or provided for or m 
conjunction with adult clients by the provision of 
case management or personal assistance shall not 
be considered residential facilities that require 
licensing under G.S. 122C. 

Material adopted by reference shall include 
subsequent amendments and editions. 

Statutory Authority G.S. 122C-3; 1122C-23; 122C- 
26; 143B-174. 

SECTION .0300 - FACILITY 
AND PROGRAM MANAGEMENT 



1226 



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PROPOSED RULES 



.0342 EDUCATIONAL REQUIREMENTS 
FOR CHILDREN/ ADOLESCENTS 

(a) Eaeh — facility — serving — children — and 

adolescents shall ensure that the public education 
requirements of the N.C. Department of Public 
Instruction arc met for each client. 

{b) Each — facility — serving — children — and 

adolescents shall develop and implement written 
policies regarding transition of educational services 
between the lead education agency (LEA) and the 
facility. 

{e) Eaeh — facility — serving — children — and 

adolescents shall be responsible for coordinating 
each child's or adolescents's individual treatment 
plan with this individualized education program. 

Except for community respite services, each 
facility serving children and adolescents shall: 

(1) ensure that the public education 
requirements of the N.C. Department of 
Public Instruction are met for each client; 

(2) develop and implement written policies 
regarding transition of educational 
services between the lead education 
agency (LEA) and the facility; and 

(3) be responsible for coordinating each 
child's or adolescents's individual 
treatment plan with this individualized 
education program. 

Statutory Authority G.S. 122C-26; 143B-147. 

SECTION .0400 - PHYSICAL PLANT 

.0402 FACILITY CONSTRUCTION/ 
ALTERATIONS/ ADDITIONS 

(a) When construction or use of a new facility is 
planned or when alterations or additions are 
planeed for an existing facility, work shall begin 
only after consultation with the DFS Construction 
Section, the local building official having 
jurisdiction, and the local fire official having 
jurisdiction. 

(b) All required permits and approvals shall be 
obtained from the governing authorities having 
jurisdiction. 

(c) Each facility shall be responsible for 
compliance with the Americans with Disabilities 
Act. 

Statutory Authority G.S. 122C-26; 143B-147. 

.0403 COMPLIANCE WITH BUILDING 
CODE REQUIREMENTS 

(a) As used in this Rule the term "new facility" 
refers to a any facility which has not been licensed 



previously as a mental health facility, and for 
which an initial license under G.S. 122C. Article 
2 is being sought. The term docs not refer only to 
a "new" — building but will apply to an — "old" 
building if the building house s a facility for which 
an initial license i s being sought. 

(b) Each new facility shall be in compliance 
with the current North Carolina State Building 
Code as applicable to the specific service type and 
facility type. Copies of these Building Code 
Volumes may be purchased from the Department 
of Insurance Engineering Division located at 410 
NL Boylan Avenue, Raleigh, N.C. 27603. The 
North Carolina State Building Code is adopted by 
reference to include any subsequent amendments 
and editions of the referenced material. 
Each new facility s pecified in (d), (c), (f), (g), (h) 
and (i) of this Rule, with the exception of private 
home — respite, — alternative — family — living — and 
apartment — models, — and — s upervi s ed — independent 
living, shall be in compliance with the current 
edition of — Section 1 IX of Volume I of the N.C. 
State Building Code. 

(e) — Each new facility specified in (d), (c), (f), 
(g), (h) and (i) of this Rule, with the exception of 
private home re s pite, alternative family living and 
apartment models shall be in compliance with the 
curr e nt edition of Volume II, HI and IV of the 
N.C. State Building Code. 

(d) — In addition to Building Code requirements 
specified — m — (b) — ef- — this — Rule, — new — facilities 
specified — m — (44; — (24; — &fld — (3)and — (4) — of this 
Paragraph — sbaH — meet — the requirements of the 
current edition of Volume 1 B of the N.C. State 
Building Code as follows: 

(4) Developmental Disability group home 

facilities: Mental — retardation — ef — other 

developmental disability facilities: 

(A) — group homes for adults with mental 

retardation — ef — other — developmental 

disabilities serving six or fewer clients 

wbe — afe — ambulatory — and — able — te 

respond on their own and evacuate the 

facility without as s istance; and 

{B} — group homes for children with mental 

retardation — ef — other — developmental 

disabilities serving six or fewer client s 

wbe — afe — ambulatory — and — able — te 

re s pond on their own and evacuate the 

facility without assistance; and 

group — home s — fef — individuals — w+tb 



(€>- 



mental retardation ef oth e r 

developmental — di s abilitie s — and — wrtb 
behavior — disorders — serving — at* — ef 
fewer clients who arc ambulatory and 



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October 1, 1993 



1227 



PROPOSED RULES 



able to respond on their own and 

evacuate the facility without 

assistance; and 



m- 



Developm e ntal Disability respite 

facilities: 



s mall community center based respite 
fef — individuals — with — developmental 
disabilitie s , developmental delays or at 
risk for these condition s serving — three 
or fewer clients of whom one, two or 
three are non ambulatory — or unable to 
respond on their own — te — emergency 
conditions; 

ef — §45t3 



(A) — Building 



requirements 
FAMILY DAY CARE HOMES, 



-Veir 



m 



&r 



1, N.C. Building Code shall be met. 
— Mobile homes shall not be permitted. 
Mental health facilities: 



{A) — group — homes — and — residential — acute 
treatment — fef — adult — and — elderly 
individuals — wke — are — mentally — H+ 
serving six or fewer clients who arc 
ambulatory' and able to re s pond on 
their own and evacuate the facility 
without assistance; and 

{B) — residential treatment for children and 
ade — lesccnts — s erving — si* — or fewer 
client s who arc ambulatory and able 
to respond on their own and evacuate 



iM- 



the facility without assistance. 
Substance abuse facilities: 



(A)- 



nonhospital medical detoxification for 
indi viduals — whe — are — substance 



abuse 



sere serving six or fewer clients 
whe — are — ambulatory — and — abfe — te 
respond on their own and evacuate the 
facility without assistance; 

(B) social setting detoxification fef 

individuals who are alcoholic s serving 
si* — ef — fewer — clients — who — are 
ambulatory and able to respond on 
their own and evacuate the facility 
without assistance; and 
(€) — halfway houses for individual s who 
are substance abusers serving six or 
fewer clients who arc ambulatory and 
able to respond on their own and 

evacuate the facility without 

assistance. 
fe} — In addition to Building Code requirements 
specified in ("b) and (c) of this Rule, new facilities 
specified in ( 1 ) and (2) of this Paragraph shall 
meet the requirements of the current edition of 
Volume I, Section 513 of the N.C. State Building 
Code as follows: 



f+) Developmental disability facilities: 

i-A) — group homes for adults with mental 
retardation — ef — other — developmental 
disabilities — serving — five — ef — fewer 
clients — aH — of- — whom — are — non 
ambulatory or unable to respond and 
evacuate without assistance, certifiable 
fef — Medicaid — reimbursement — asd 
staffed 2 4 hour s per day with at least 
two (2) staff awake at all times.; 

(B) — group homes for adults with mental 
retardation — ef — other — developmental 
disabilitie s — serving — more — than — si* 
clients and fewer than ten clients who 
arc ambulatory and able to respond on 
their own to emergency conditions; 

(€) — group homes for adults with mental 
retardation — ef — other — developmental 
disabilities serving six or fewer clients 
of whom one, two or three arc non 
ambulatory or unable to respond on 
their own to emergency conditions; 

i&) — group homes for children with mental 
retardation — ef — other — developmental 
disabilities — serving — five — ef — fewer 
clients — aH — ef- — whom — afe — Hen- 
ambulatory or unable to respond and 
evacuate without assistance, certifiable 
fef — Medicaid — reimbursement, — and 
staffed 2 4 hour s per day with at least 
two (2) staff awoke at all time s .; 

(E-) — group homes for children with mental 
retardation — ef — other — developmental 
disabilities serving six or fewer clients 
of whom one, two or three are non 
ambulatory or unable to respond on 
their own to emergency condition s ; 

(F-) — group — homes — fef — individual s — with 

mental retardation ef other 

developmental disabilities aftd 



<&- 



behavior disorders — sew 



fig — ftve — ef 
fewer client s all of whom are non 
ambulatory or unable to respond and 
evacuate without assistance, certifiable 



fef — Medicaid 



and 



)r Medicaid — reimbursement, 
staffed 2 4 hours per day with at least 
two (2) staff awake at all times.; 
group — homes — fef — individuals — with 
menta 



retardation ef other 

developmental — di s abilitie s — and — with 
behavior — d i sorders — serving — si* — ef 
fewer of whom one, two or three arc 
non ambulatory or unable to respond 
on their own to emergency conditions; 
fH-) — s up e rvi s ed independent living 



1228 



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October 1, 1993 



PROPOSED RULES 



boarding homes for adults with mental 
retardation — ef — other — developmental 
di s abilities — serving — more — then — si* 
clients and fewer than ten clients who 
arc ambulatory and able to respond on 
their own to emergency condition s ; 

ftftO 

(t) community center based respite for 

individuals with — mental — retardation, 

other developmental di s abilities, 

developmental delays or at risk for 
these conditions serving six or fewer 
clients of whom one, two or three are 
non ambulatory or unable to respond 
on their own to emergency conditions- 



Mental — health — facilitie s : 



residential 



m — 

treatment for individuals serving s even 

to nine clients who are ambulatory and 

able — te — respond — ©ft — their — own — and 

evacuate the facility without assistance. 

(f) — In addition to Building Code requirements 

s pecified in (b) and (e) of this Rule, new facilities 

specified in (1), (2) and (3) of this Paragraph shall 

meet the requirements of the current edition of 

Volume I, Section 4 09, Institutional Occupancy (I) 

of the N.C. State Building Code as follows: 

{+) Developmental disability facilities: 

(A3 — s pecialized — community — residential 
services for individuals with mental 
retardation — ©f — other — developmental 
disabilities; 
(B) — group home s for adults with mental 
retardation — ef — oth e r — developmental 
disabilities serving six or fewer clients 
of whom more than three arc non 
ambulatory or unable to respond on 
their own to emergency conditions; 
{€) — group — homes — fef — individuals — with 

mental retardation ef other 

developmental — disabilities — and — with 
behavior — disorders — s erving — six — of 
fewer clients — of whom — more than 
three ar e non ambulatory or unable to 
respond on their own to emergency 
conditions; 
{&) — group homes for children with mental 
retardation — ©f — other — developmental 
disabilities serving six or fewer clients 
of whom more than three arc non 
ambulatory or unable to respond on 
their own to emergency condition s ; 



fE) — community center based — respite for 
individuals with — mental — retardation, 
other developmental disabilities, 



developmental delays or at risk for 
these conditions serving five or fewer 
clients of whom more than three arc 
non ambulatory or unable to respond 
on their own to emergency conditions. 

{3} Mental health facilitie s : 

(A-) — inpatient — psychiatric — facilities — fef 

individuals who arc mentally ill; 
$B) — residential acute treatment for adult 
and — elderly — individuals — who — afe 
mentally ill; and 
{€} — residential treatment for children and 
adolescents — serving — ten — ©f — more 
client s . 

{£) Substance abu s e facilities: 

{A) — inpatient hospital treatment fef 

individuals wfio are substance 

abu s ers; and 
{&) — nonhospital medical detoxification for 

individuals wke are substance 

abusers. 
(g3 — In addition to Building Code requirements 
specified in (b) and (c) of this Rule, new facilitie s 
specified in (1), (2), (3) and ( 4 ) of this Paragraph 
shall meet the requirements of the current edition 
of Volume I, Section 4 05, Business Occupancy (B) 
of the N.C. State Building Code as follow s : 

{±} Mental retardation ef other 

Developmental disability facilities: 

adult developmental activity programs 

fef individuals with substantial 

developmental — disabilities — ©f — mental 
retardation, severe physical disabilitie s 
©f — other — substantial — developmental 
disabilities; 

f2} Mental health facilitie s : 

(A) — psychosocial rehabilitation programs 
for individuals who arc chronically 
mentally ill; 
fB} — day — treatment — fef — children — and 
adolescent s who — are emotionally 
disturbed; and 
{€-) — partial hospitalization programs (PHP) 
for adult and elderly individuals who 
arc acutely mentally ill;. 

0j Substance abuse facilities: 

(A) — outpatient — treatment — fef — individuals 
who arc substance abusers; 

fB) — outpatient detoxification f-©-F 

individuals wh© afe substance 

abusers; and 
{€) — outpatient — methadone — services — fef 
individual s who arc narcotic abu s ers;. 

(4) Facilities serving one or more disability: 

{A) — sheltered workshop s ; and 



8:13 



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October 1, 1993 



1229 



PROPOSED RULES 



iBj — day activity facilities for adult and 

elderly individuals who arc mentally 

ill or substance abusers. 

{£) — In addition to Building Code requirements 

s pecified in fb) and (e) of thi s Rule, new facilities 

specified in ( 1 ) and (2) of this Paragraph shall 

meet the requirements of the current edition of 

Volume I, Section 4 06, Educational Occupancy (E) 

of the N.C. State Building Code as follows: 

{+) Mental retardation ©-f other 

Developmental disability facilities: 

before/after s chool and summer 

developmental day services for children 
with — mental — retardation — ef — other 
developmental disabilities; and 

(3) Mental health facilities: — day treatment 

for children and adolescents who arc 
emotionally disturbed. 
{+) — In addition to Building Code requirements 
specified in (b) and (c) of this Rule, new facilities 
specified in (1) and (2) of this Paragraph s hall 
meet the requirements of the current edition of 
Volume I, — General — Construction, — Section 4 11, 
Residential — Occupancy — fR-) — of the — NrG — State 
Building Code as follows: 

{+) Substance abuse facilities: 

(A) — social setting detoxification for more 

then — six individuals wh« are 

alcoholics; 
(B) — residential treatment or rehabilitation 
for more than six individuals who arc 
substance abusers; and 
{€) — halfway houses for more than — si* 

individuals whe are substance 

abusers. 

f3) Facilities serving ene — ef more 

disability: residential — therapeutic 

(habilitativc) — camps — for children — and 
adolescents. 
fj} — Volume I (General Construction) is available 
at a co s t of ten dollars ($10.00); Volume I B 
(Uniform Residential Building Code) at a eost of 
two dollars ($2.00); Volume II (Plumbing) at a 
co s t of three dollars ($3.00); Volume HI (Heating 
and Air Conditioning) at a cost of four dollars and 
fifty cent s ($ 4 .50); and Volume IV (Electrical) at 
a cost of fifteen dollars ($15.00) from the N.C. 
Department — ef- — In s urance, — RO: — Bex — 26387, 
Raleigh, N.C. 27611. 

(k) — The material which is adopted by reference 
in this Rule is adopted in accordance with the 
provisions of G.S. 150B 1 4 (c). 

Statutory Authority G.S. 122C-26; 143B-147. 



SUBCHAPTER 14L - LICENSURE RULES 
FOR MENTAL HEALTH FACILITIES 

SECTION .0500 - GROUP HOMES 

FOR ADULT AND ELDERLY 

INDIVIDUALS WHO ARE 

MENTALLY ILL 

.0501 SCOPE 

fa) Group homes — for individuals — wbe — we 

mentally ill is a residential service designed to 
provide a home within which staff assistance is 
available — te — develop — community — living — skills, 
appropriate social behavior, vocational functioning, 
leisure — time — activities — and — ase — of community 
resources. — These group homes may be provided 
by the following models: 

{+) transitional residence programs 

providing limited to moderate levels of 
supervision; and 

(3) supervised group homes which provide 

moderate to intensive supervision for 

individuals who need assistance with 

activities of daily living or to develop 

community living skills. 

fb) This service is designed to assist individuals 

to progress toward specific sub goals related to 

their individual treatment plan and is designed 

primarily to serve mentally ill persons who arc 18 

or older. 

Statutory Authority G.S. 122C-26; 143B-147. 

.0502 CAPACITY 

Each facility shall have a capacity of nine or 
fewer individuals. 

Statutory Authority G.S. 122C-26; 143B-147. 

.0503 HOURS OF OPERATION 

Each facility shall operate 2 4 hours per day, 
seven days per week, 12 months per year. 

Statutory Authority G.S. 122C-26; 143B-147. 

.0504 STAFF REQUIRED 

fa) — Supervised group homes shall have at least 
one staff member on site at all times when clients 
are present. 

(b) In transitional residence facilities, staff shall 
not be required to be present at all times. 

fe) The — governing — body — sneH — ensure that 

additional — staff is — present — if- — needed — te — meet 
temporary — needs — of individual — clients — and — te 
protect the health and safety of all clients. 



1230 



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October 1, 1993 



PROPOSED RULES 



Statutory Authority G.S. 122C-26; 143B-147. 

.0505 TREATMENT COORDINATION 

(a) Coordination shall be maintained between the 
facility operator and the qualified mental health 
professional who is responsible for treatment or 
case management. 

{b) — Each facility shall have a written agreement 
documenting: 

{\) access — te — psychiatric, — medical — and 

clinical — consultation — and — emergency 
psychiatric services; and 

{3) the responsibility of the facility staff to 

implement specific — portion s of each 
individual client's treatment plan. 

Statutory Authority G.S. 122C-26; 143B-147. 

.0506 PROGRAM ACTIVITIES 

{a) — Each client shall participate in the overall 
operation of the residence including participation 
in routine activities such as maintenance and meal 
preparation. 

fb) Eaeh — facility — sbaH — e s tablish — a resident 

council that meets on a regularly scheduled basis 
to discuss the client's responsibilities and issues 
related to facility activities. 

{e) — Each client shall be involved in treatment, 

rehabilitation, vocational, educational, ef 

employment activities — outside the facility on a 
regular basis as specified in the client's individual 
treatment plan. 

Statutory Authority G.S. 122C-26; 143B-147. 

.0507 LEVELS OF CLIENT SUPERVISION 

(a) Eaoh cli e nt of a transitional r e sid e nc e facility 
shall hav e a tr e atm e nt plan d e v e lop e d by a m e ntal 
health prof e ssional whioh oontains docum e ntation 
that th e individual n ee ds a r e sid e ntial s e rvio e with 
f e w e r than 2 4 hour per day supervision and that 
the intensity of sup e rvision provid e d by the facility 
is — consistent — with — the — n ee ds — id e ntified — m — the 
individual's tr e atm e nt plan. 

(b) Eaoh olient of a sup e rvised group homo shall 
hav e a tr e atm e nt plan d e v e lop e d by a qualified 
m e ntal h e alth prof e ssional which documents that 
th e int e nsity of sup e rvision provid e d by th e faoility 
is consist e nt with the needs — id e ntifi e d — in th e 
individual's tr e atm e nt plan. 

Statutory Authority G.S. 122C-26; 143B-147. 

.0508 CLIENT TRAINING IN HEALTH 
AND SAFETY 



{a) — Each client shall receive training concerning 
safe and proper method s of using kitchen and 
housekeeping equipment such as knives, range, 
exhaust fan and other electrical appliance s . 

(b) — Each client shall have access to first aid 
supplies located in each facility and shall receive 
training in the use of these supplies. 

{e) Each client shall — receive instruction in 

obtaining s ervices in emergency situations. 

Statutory Authority G.S. 122C-26; 143B-147. 

SUBCHAPTER 14M - LICENSURE RULES 

FOR MENTAL RETARDATIONX 

DEVELOPMENTAL DISABILITIES 

FACILITIES 

SECTION .0200 - GROUP HOMES FOR 

INDIVIDUALS WITH MENTAL 

RETARDATION OR OTHER 

DEVELOPMENTAL DISABILITIES AND 
WITH BEHAVIOR DISORDERS 

.0201 SCOPE 

A — group — hom e for — individuals — with — m e ntal 
r e tardation or oth e r d e v e lopm e ntal disabiliti e s and 
b e havior disorders is a resid e ntial faoility whioh 
provid e s int e nsiv e b e havioral tr e atm e nt in a homo 
lik e e nvironm e nt. — This faoility is d e signed to 
am e liorat e th e specific behavior probl e m whioh is 
pr e v e nting th e individual's int e gration into habilita 
tiv e programs in th e individual' s hom e oommunity. 
This s e rvio e may bo certifi e d for M e dicaid as an 
Int e rm e diat e — Car e — Faoility — fef — the — mentally 
r e tard e d (ICF/MR). 

Statutory Authority G.S. 122C-26; 143B-147. 

.0202 CAPACITY 

(a) — Th e faoility shall serv e no mor e than six 
individuals at any on e tim e . 

(b) — No facility shall d e signate any b e d for the 
continuous provision of r e spit e s e rvio e s. 

Statutory Authority G.S. 122C-26; 143B-147. 

.0203 HOURS OF OPERATION 

Eaoh faoility shall op e rate 2 4 hours per day, 
s e ven days p e r week, 12 months p e r y e ar. 

Statutory Authority G.S. I22C-26; 143B-147. 

.0204 STAFF REQUIRED 

(a) Th e faoility shall have a designat e d program 
dir e ctor. 



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PROPOSED RULES 



(b) At least one staff member, in addition to the 
director, shall have received training in the orca of 

behavior modification through educational 

preparation in special education, psychology or a 
closely related field. 



*e)- 



Written — policies — and — procedures — fef 



utilization of relief staff shall be developed and 
implemented. 

i4j Staff shall — be employed to — implement 

habilitative programming, including provisions for 
accompanying — clients — e« — visits — t© — their — home 
communities, — and to conduct routine cooking, 
cleaning and maintenance of the facility. 

(e) — The facility shall provide or secure support 
services of professionals as documented in each 
individual goal plan. 

Statutory Authority G.S. 122C-26; 143B-147. 

.0205 CLIENT/STAFF RATIOS 

fe) — When there are two or more client s in the 
facility, a minimum of two staff members shall be 
on duty at all times. 

(b) On occasions when only one client is in th e 
facility, a minimum of one s taff member shall be 
on duty. 

Statutory Authority G.S. 122C-26; 143B-147. 

.0206 DAY SERVICES 

Day services outside the facility, s uch as educa 
tional and vocational training, shall be secured for 
each client as specified in the individual goal plan. 

Statutory Authority G. S. 122C-26; 143B-147. 

.0207 MEDICAL STATEMENT 

{a) — Each staff m e mber who works dir e ctly and 
on a regularly scheduled basin with clients shall 
submit a m e dical stat e m e nt from a lic e ns e d physi 
oian or an authoriz e d h e alth prof e ssional under the 
sup e rvision of a physician to th e facility at th e 
tim e of initial approval and annually th e reaft e r. 

fb) — Th e m e dical stat e m e nt shall b e in any writ 
ten form and shall indioato the general physical 
and m e ntal h e alth of th e individual and any r e stric 
tions r e quired by G.S. — 130 A HI to pr e v e nt th e 
transmission within th e facility of tub e rculosis or 
any oth e r communicable diseas e or condition that 
r e pr e s e nts a significant risk of transmission within 
th e facility. 

{e>) The facility shall k e ep the most r e c e nt 

m e dical stat e m e nt on fil e . 



Statutory Authority G.S. 122C-26; 130A-144; 



143B-147. 

.0208 BEHAVIORAL PROGRAMMING 

The primary emphasis in goal planning shall be 
on the elimination of the specific problem bchav 
iors which precipitated the admission to the facili 

ty: Other developmental and habilitative goals 

shall also be addressed during the client's stay at 
the facility. 

Statutory Authority G.S. 122C-26; 143B-147. 

.0209 COMMUNITY RESOURCES 

in — accordance — with — eeeh — cli e nt's — individual 
program — plan, — community — r e sources — shall — be 
utilized — for eaoh — cli e nt — including — r e cr e ational, 
m e dioal, d e ntal and r e ligious resources. 

Statutory Authority G. S. 122C-26; 143B-147. 

.0210 PARTICIPATION OF THE FAMILY 
OR LEGALLY RESPONSD3LE 
PERSON 

Each facility shall mak e efforts to involv e the 
family or th e legally r e sponsibl e p e rson of oaoh 
cli e nt in th e planning and implementation of his 
individual goal plan. 



Statutory Authority G.S. 122C-26; 143B-147. 

SECTION .0300 - GROUP HOMES FOR 

ADULTS WITH MENTAL RETARDATION 

OR OTHER DEVELOPMENTAL 

DISABILITIES 

.0301 SCOPE 

A group home for adults with m e ntal retardation 
or other d e velopmental disabilities is a residential 
facility which provides a normaliz e d home envi 
ronm e nt in whioh to incorporat e dev e lopm e ntal 

training — ami — habilitativ e — programming. This 

facility is design e d to promote indep e nd e nce of th e 
resid e nts in ord e r for them to liv e in a community 
based setting. — Although r e sid e nts may poss e ss 
basio s e lf h e lp, socialization and oth e r community 
living skills, th e y hav e not aohi e v e d th e d e gr ee of 
ind e p e nd e nce in these skill ar e as r e quir e d for th e 
sup e rvis e d ind e pendent living models such as a 
boarding hom e or apartm e nt living. — Ther e for e , 
this facility is a mor e r e strictiv e type of s e rvice 
than an apartm e nt living program. — This facility 
may b e c e rtifi e d for M e dicaid as an Interm e diat e 
Car e Facility for the Mentally Retard e d (ICF/MR). 

Statutory Authority G.S. 122C-26; 143B-147. 



1232 



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PROPOSED RULES 



.0302 CAPACITY 

The facility shall have a capacity of nine or 
fewer clients. 

Statutory Authority G.S. 122C-26; 143B-147. 

.0303 COMPLIANCE WITH GROUP 
HOME STANDARDS 

{a) The — standards — fef — group — hom e s — fef 

d e v e lopmcntally disabled adults which arc licensed 
und e r G.S. 131 D and describ e d in the manual 
titl e d — "Minimum — and — D e sired — Standards — and 
Regulations for Group Homes for D e v e lopm e ntally 
Disabl e d Adults" (10 NCAC 4 2B .0900 — ^00) 
published by the N.C. — Department of Human 
Resouroos shall also apply to all privat e non profit, 
privat e for profit or area op e rat e d group hom e s for 
d e v e lopmentally — disabl e d — adults — lic e nsed — und e r 
G.S. 122 C. — Thes e standards shall not apply to 
any group hom e oortified as an Interm e diate Car e 
Faoility for th e Mentally R e tard e d or any group 
hom e holding a curr e nt o e rtifioat e of need to b e 
d e v e lop e d as an Int e rm e diat e Car e Faoility for the 
Mentally Retard e d. — S e ctions .1000, .2200 and 
.2300 of Subchapt e r 10 NCAC 4 2B shall not apply 
to ar e a operated group hom e s. This publication is 
availabl e fr ee of charg e from th e N.C. D e partm e nt 
of Human R e souro e s, Division of Sooial Servic e s, 
325 N. Salisbury Street, Raleigh, North Carolina 
27611. 

<b) The provision in 10 NCAC 4 2C .2 4 01 

(which i-s cross — refer e nc e d i-n 

10 NCAC 42B .1701) that prohibits th e admission 
of peopl e "with dis e ase in a communicable stag e 
or carrier state" shall not prohibit the admission of 
r e sid e nts who ar e h e patitis B carri e rs to a hom e 
op e rat e d by a public ag e ncy if th e hom e is in 

oompliano e with the rules codified m 

10 NCAC 1 8 H .0107 through .01 15; 

HEPATITIS B SCREENING A-N^ 

VACCINATION OF RESIDENTS AND DIRECT 
CARE EMPLOYEES IN GROUP HOMES FOR 
MENTALLY RETARDED ADULTS. 

(o) The Rules which ar e adopt e d by r e fer e no e in 
this Rul e ar e adopt e d in accordanc e with the 
provi s ion s of G.S. 150B 1 4 (o). 

Statutory Authority G.S. 122C-26; 143B-147; 
150B-14(c). 

.0304 MEDICAL STATEMENT 

(a) — Each staff m e mber who works dir e ctly and 
on a regularly sch e dul e d basis with client s shall 
s ubmit — a — m e dical — statem e nt — from — a — licensed 
physician — or an authoriz e d — h e alth — professional 



under the supervi s ion of a physician to the facility 
at — the — time — ef- — initial — approval — and — annually 
thereafter. 

fe) The medical statement shall be in any 

written form and shall indicate the general physical 
and — mental — health — of the individual — and any 
restrictions required by G.S. 130A 111 to prevent 
the transmission within the facility of tuberculo s is 
or any other communicable disease or condition 
that represents a significant risk of transmission 
within the facility. 

(e) The facility shall keep the most recent 

medical statement on file. 

Statutory Authority G.S. 122C-26; 130A-144; 
143B-147. 



SECTION .0400 - GROUP HOMES FOR 

CHILDREN WITH MENTAL 

RETARDATION OR OTHER 

DEVELOPMENTAL DISABILITIES 

.0401 SCOPE 

A — group — home — fef — children — with — mental 
retardation or other developmental disabilities i s a 
re s idential facility which provides a normalized 
home environment for children who arc not living 
with their familie s . — This facility is designed to 
assist each child in residence to attain his highest 
level — ef- — independent — living — skills — through 
developmental training integrated with family and 
community activities to prepare the child for rcsi 
dence with his own family or other less restrictive 
environment. — Thi s facility may be certified as an 
Intermediate — Care — Facility — fef — the — Mentally 
Retarded (ICF/MR). 

Statutory Authority G.S. 122C-26; 143B-147. 

.0402 CAPACITY 

(a) — Th e facility shall serve no more than six 
children at any on e tim e . 

(b) — No faoility shall d e signat e any b e d for th e 
continuous provision of r e spite servic e s. 

Statutory Authority G.S. I22C-26; 143B-147. 

.0403 HOURS OF OPERATION 

fa) — Each facility shall operate 2 4 hours per day, 
seven days per week, 12 month s per year. 

(e) — Waking and sleeping hours of the facility 
shall be designated and posted by the program 

director. The program director shall designate 

when the hours are in effect. 



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PROPOSED RULES 



Statutory Authority G.S. 122C-26; 143B-47. 



Statutory Authority G.S. 122C-26; 143B-147. 



.0404 STAFF REQUIRED 

(a) The facility shall have a designated program 
director. 

(k) — A minimum of one staff member shall have 
educational — preparation in at least one of the 
following areas: — special education, social work, 

psychology, child — development, nursing, 

recreational — therapy, — occupational — therapy, — ef 
language and communication therapy. 

fe) Written — policies — and — procedures — fef 

utilization of relief staff shall be developed and 
implemented. 

{4} — The facility shall provide or secure the 
services — ef- — support — profes s ionals — as — needed 
including a psychologist, social worker, physician, 
dentist, — phy s ical — therapist — and — language — and 
communication s pecialist. 

Statutory Authority G.S. 122C-26; 143B-147. 



.0407 DAILY TRAINING ACTIVnTES 

(a) Staff shall provide daily training activities in 
the — facility — which — are — designed — te — meet — the 
developmental needs of each child. 

fB Activities shall take into consideration 

the length of time each child needs rest 
periods, — his — need — fef — individual 
attention, — and — special — limitations — ef 
activities and dicta. 
Both free p4ay and organized 



m- 



recreational activities shall be provided. 

{3} Field trips and community experiences 

shall be provided. 

{4) Daily — routines — common — te — aee- 

handicapped children shall be followed. 

fb} The — staff shall — provide or secure day 

programming — fef — children — whose — educational 
programming docs not extend through the summer 
months. 



.0405 CHILD/STAFF RATIOS 

(a) — During waking hours when children arc in 
the facility, a minimum of two staff members shall 
be on duty. 

fb) — During sleeping hour s , a minimum of two 
staff members shall be in the immediate area 
unless emergency backup procedures arc sufficient 
to allow only one staff member on duty. — In such 

instances, minimum acceptable emergency 

procedures shall include the following: 

fB written — agreements — with — emergency 

medical transport services; 

(3) availability ef- — on call emergency 

backup that can arrive at the facility 
within 20 minutes; and 

0) notification to the parent or the legally 

responsible — person — that — ene — staff 

member — amy — be — eft — duty — during 

s leeping hours. 

fe) — On occasion when only one child is in the 

facility, a minimum of one staff member shall be 

on duty during waking and sleeping hours. 

Statutory Authority G.S. 122C-26; 143B-147. 

.0406 PERSONAL CARE 

fa) — Each child's personal hygiene needs shall be 
m e t daily. 

(©) — Toilet articles shall be made available to 
each child. 

fe) — Each child shall have a compl e te change of 
personal clothing at least daily. 



Statutory Authority G.S. 122C-26; 143B-147. 

.0408 MEDICAL STATEMENT 

{e} — Each staff member who works directly and 
on a regularly s cheduled basis with clients shall 
submit — a — medical — s tatement — from — a — licensed 
physician — or an authorized health — professional 
under the supervision of a physician to the facility 
at — the — time — of initial — approval — and — annually 
thereafter. 

fb) The medical — statement shall be in any 

written form and shall indicate the general good 
physical and mental health of the individual and 
any restrictions required by G.S. — 130A 111 to 
prevent the transmission within the facility — ef 
tuberculosis or any other communicable disease or 
condition that — represents — a significant — risk — ef 
transmission within the facility. 

{e} — The facility shall keep the most recent 
medical statement on file. 



Statutory Authority G. S. 
143B-147. 



122C-26; 130A-144; 



.0409 COMMUNITY RESOURCES 

in — accordance — with — eaeh — child's — individual 
program — plan, — community — resources — shaH — be 
utilized — fef — eaeh — child — including — educational, 
recreational, — medical, — dental — and — r eligious — re- 
sourccs. 

Statutory Authority G.S. 122C-26; 143B-147. 



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PROPOSED RULES 



.0410 PARTICIPATION OF THE FAMILY 
OR LEGALLY RESPONSIBLE 
PERSON 

{a) — Staff shall help the family in understanding 
mental — retardation — and — other — developmental 
disabilities, the child's development, and the extent 
of the child's handicap. 

fb) — Individual goal plans shall be developed 
jointly between the staff and the client's parent or 
the legally responsible person when feasible, 

fe) Family members shall be provided the 

opportunity to parti 
cipatc in training seminars. 

(d) Each family s hall be encouraged to maintain 
an ongoing relationship with their child through 
such means as family visits to the facility, and the 
child's — visits — with — the — parent — er — this — legally 
responsible person outside the facility. 

{e) Reports — te — th« — parent — er — th« — legally 

responsible person shall be submitted in writing at 
least quarterly, when feasible, with the opportunity 
extended to the parent or the legally responsible 
person for participation in at least one conference 
annually. 

Statutory Authority G.S. 122C-26; 143B-147. 

SECTION .0700 - COMMUNITY RESPITE 

SERVICES FOR INDIVIDUALS WITH 

MENTAL RETARDATION: OTHER 

DEVELOPMENTAL DISABILITIES: 

DEVELOPMENTAL DELAYS OR AT 

RISK FOR THESE CONDITIONS 

.0709 RESPITE ACTIVITIES 

(a) Activities shall emphasize maturation of each 
child and independence of adults, supplementing 
the services being provided by other programs and 
by parents or the legally responsible person. 

(b) Activities shall be planned daily and shall 
take into consideration the length of time each 
child should be scheduled for needed rest periods, 
the need for individual attention, and special 
limitations of activities and diet. 

(c) Activities shall be designed to provide each 
child client with learning opportunities, recreation, 
reinforcement of self-help skills, language skills, 
socialization, motor coordination and methods 
which have been successful in other settings or are 
associated with the client's family life. 

(d) Toys and leisure materials shall be accessible 
to clients Age-appropriate recreational and learning 
materials shall be accessible to clients . 

Statutory Authority G.S. 122C-26; 143B-147. 



.0715 PRIVATE HOME RESPITE: 

AGREEMENT WITH PROVIDERS 

(a) Unless outlined in a written job description 
for providers or in written policies and procedures, 
Eeach governing body shall have a written 
agreement signed by each provider of private 
home respite care. 

(b) The provisions of the agreement shall 
include specify the responsibilities of the governing 
body and the provider including : 

m th« — responsibilitie s — of the — governing 

body and the provider(s) — of respite 
care; 

(31) confidentiality requirements; 

(32) procedures for securing emergency 
services; 

(43) program activities to be implemented; 
(§4) responsibilities for supervising the 

respite client; 
(65) procedures related to administration of 

medications; 
(7-6) participation in respite training 

programs; and 
(87) terms of compensation^ 
(8} client rights; and 
(9) adherence to agency policies and 

procedures. 

(c) A signed copy of the agreement shall be 
maintained by the governing body, and a signed 
copy shall be given to the provider. 

Statutory Authority G.S. 122C-26; 143B-147. 

.0716 PRIVATE HOME RESPITE: 

RESPONSIBILITIES OF GOVERNING 
BODY 

(a) Each governing body shall: dooum e nt e fforts 
to matoh th e provider's ability to provid e r e spit e 
eare — with th e cli e nt's physioal and d e velopm e ntal 

(fe) A — writt e n — stat e m e nt — ef — duties — and 

r e sponsibiliti e s during each e pisode of respit e car e 
shall b e provid e d to th e r e spit e provider. — This 
stat e ment shall includ e length of s e rvio e to b e 
provid e d, — m e dications to — b e administ e r e d, — and 
sp e cial di e tary consid e rations. 

(1) document efforts to match the 
provider's ability to provide respite care 
with the client's physical and 
developmental needs; 

(2) make available to the provider 
instructions regarding duties and 
responsibilities which shall include, but 
need not be limited to: 

(A) period of time for service to be 



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1235 



PROPOSED RULES 



provided; 

(B) medications to be administered, and 

(C) special dietary considerations; and 
(d3) The governing body shall provide each 

respite provider with a form for 

recording illness, accident, or medical 

concern, including administration of 

medication. Following each respite 

episode, this form shall be maintained 

by the governing body in the client's 

record. 

(eb) If the respite client is involved in a 

developmental or occupational program, the respite 

provider shall be provided written information 

regarding responsibilities for assuring that the 

client attends the program^ and for structuring 

activities at the respite facility to enhance 

objectives established by the developmental or 

occupational program. 

(ecj At least one approved respite provider shall 
supervise the respite client at all times. 

(fd) The respite program director shall review 
with the provider the plan for emergency 
evacuation of the home prior to accepting respite 
clients 

(ge) Only the respite program director or his 
designee shall arrange respite care between the 
client's family and the respite provider. 

Statutory Authority G.S. 122C-26; 143B-147. 

SUBCHAPTER 14N - LICENSURE RULES 
FOR SUBSTANCE ABUSE FACILITIES 

SECTION ,0600 - HALFWAY HOUSES 

FOR EVDIVIDUALS WHO ARE 

SUBSTANCE ABUSERS 

.0601 SCOPE 

A halfway house is a residential facility which 
provides — a structured — living — environment in — a 
group facility for individuals who are alcoholics or 
other drug abusers. — The facility is designed to 
enhance the client's return to independent living 



r4th+ 



fie time. — Individuals must have been 



spec 

detoxified prior to entering the facility. — Treatment 
and rehabilitation service s arc provided outside the 

facility. Services provided by the facility are 

coordinated with the individual's tr e atment plan. 

Statutory Authority G.S. 122C-26; 143B-147. 

.0602 HOURS OF OPERATION 

The facility shall provide services 2 4 hour s p e r 
day. seven days per week, 12 months per year. 



Statutory Authority G.S. 122C-26; 143B-147. 

.0603 STAFF REQUIRED 

fa) — A minimum of one staff member shall be 
present in the facility when clients arc present in 
the facility. 

{¥) Tfee — s ervices — of a certified alcoholism 

coun s elor, a certified drug abuse counselor or a 
certified — substance — abuse — counselor — sfeaH — be 
available on an as needed basis to each client. 



«f 



(c) In facilities that serve minors, a minimum 
one staff member for each five or fewer minor 
clients shall be on duty during waking hours when 
minor clients arc present. 

Statutory Authority G.S. 122C-26: 143B-147. 

.0604 STAFF TRATNTNG 

(a) — Each facility shall have at least one staff 
member on duty trained in the following areas: 

fB cardio pulmonary resuscitation; 

(S-) seizure management; 

@) the Heimlich maneuver or other Red 

Cross first aid techniques for relieving 
airway obstructions; 

{A) basic first aid; 

fS) alcohol — afid — other — dfttg — withdrawal 

symptoms; 

i€j medication education; and 

irfy symptoms of secondary complications 

to alcohol and other drug addiction. 
i&) — Each direct care staff member shall receive 
continuing education to include understanding of 
the nature of addiction, the withdrawal syndrome, 
group therapy, family therapy and other treatment 
methodologies. 

fe-) — Each direct care staff member in a facility 
that serves minors shall receive specialized training 
in youth development and therapeutic techniques in 
working with youth. 



Statutory Authority G.S. 122C-26; 143B-147. 

.0605 EMERGENCY MEDICAL SERVICES 

Each facility shall hav e and implement writt e n 
proc e dur e s — fef — handling — m e dical — e m e rg e ncies. 
Th e s e proc e dures shall includ e provision for th e 
following: 

{h imm e diat e acc e ss to a physician; 

(2) acut e car e hospital s e rvices; and 

0) assistance — from — a — leeal — ambulanc e 

service, r e scu e squad or other trained 
m e dical p e rsonn e l within 20 minut e s of 



th e facility. 



1236 



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PROPOSED RULES 



Statutory Authority G.S. 122C-26; 143B-147. 

.0606 SCHEDULE OF ACTIVITIES 

(a) The facility shall have a written schedule for 
daily routine activities. 

(b) The facility shall maintain a written schedule 
of support activities provided for clients. 

Statutory Authority G.S. 122C-26; 143B-147. 

.0607 POSTING OF HOUSE RULES 

House rules ohall b e conspicuously posted in th e 
faoility. 

Statutory Authority G. S. 122C-26; 143B-147. 

SUBCHAPTER 140 - LICENSURE RULES 

FOR FACILITIES SERVING MORE 

THAN ONE DISABILITY 

SECTION .0100 - ALTERNATIVE FAMILY 
LIVING 

.0101 SCOPE 

(a) — Alt e rnative family living is a r e sid e ntial 
faoility — whioh — provid e s — room — and — board — and 
"family styl e " supervision and monitoring of th e 
oli e nt's daily activities. — Individuals liv e with a 
family who act as providers of supportiv e s e rvio e s. 
The — servic e — provid e rs — ate — supported — by 
prof e ssional staff with ongoing consultation and 
e ducation to th e s e rvio e provid e rs in th e ir own 
hom e s. 

(b) — Alternative family living may includ e th e 
host hom e model whioh is a r e sidential faoility that 
provides for placement of an — individual — in a 
privat e home on a oontraot e d short t e rm basis with 
continuous supervision suppl e m e nted by tr e atm e nt 
provid e d by prof e ssional staff. 

{e) — Each faoility shall be d e sign e d primarily to 
s e rv e — p e rsons — with — m e ntal — illness, — m e ntal 
retardation or other developmental disability, or 
substanc e abus e in need of a sup e rvis e d living 
e nvironm e nt within a oommunity setting. 

Statutory Authority G.S. 122C-26; 143B-147. 

.0102 CAPACITY 

Each alt e rnativ e family living faoility shall s e rv e 
a maximum of two cli e nts at the sam e tim e . 

Statutory Authority G.S. 122C-26; 143B-147. 

.0103 PHYSICAL PLANT REQUIREMENTS 

{a} — A minimum of on e ioniz e d smok e det e ctor 



wired into the house current 9 hall be installed and 
centrally located. — Additional smoke detectors that 
arc not wired into the house current shall be 
checked at least monthly by the provider. 

fb) A — dfy — powder — ef — CO(2) — type — fife 

extinguisher shall be located in the kitchen and 
shall be checked at least annually by the local fire 
department. Each client and provider shall receive 
instruction in its use on his first day of residence. 

Statutory Authority G.S. 122C-26; 143B-147. 

.0104 DESIGNATED QUALD7IED 
PROFESSIONAL 

Each — client — admitted — te — a — facility — sfiafi — be 
receiving services from a qualified mental health 
professional, qualified develop — mental disabilities 

profes s ional, ©f — qualified — substance — abuse 

profe ss ional, as appropriate, who has responsibility 
fef — the — client's — treatment, — program — er — ease 
management plan. 

Statutory Authority G.S. 122C-26; 143B-147. 

.0105 CLIENT SUPERVISION 

At l e ast one faoility staff m e mb e r shall b e present 
in th e faoility during hours in whioh a client is in 
th e faoility unless th e qualified prof e ssional who 
has — designated — responsibility — fef — the — oli e nt's 
tr e atm e nt program or oas e manag e m e nt plan has 
dooumontod in th e individual cli e nt plan that th e 
oli e nt — may — r e main — m — the — faoility — without 
sup e rvision in c e rtain cl e arly d e lineated instanoos. 

Statutory Authority G.S. 122C-26; 143B-147. 

.0106 SERVICE RESPONSIBILITIES 

(a) Wh e n th e gov e rning body is not th e provid e r 
of s e rvioes, it shall att e mpt to match th e cli e nt's 
n ee ds with th e provid e r. 

(b) Eaoh gov e rning body shall maintain an 

application on e ach provider whioh includes the 
following: 

ft) full nam e of e aoh person living in th e 

faoility; 

(2) plao e , tel e phon e numb e r and hours of 

e mployment for thos e family members 
who will b e providing alt e rnativ e family 
living s e rvioes; 

{^) addr e ss, — dir e ctions — to and tel e phon e 

numb e r of resid e nce; and 

f4) descriptions of sl ee ping arrang e ments 

for th e oli e nt. 
fe-) — Eaoh gov e rning body shall hav e a written 
agr ee m e nt with e aoh provid e r whioh inoludos but 



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1237 



PROPOSED RULES 



is not limited to the following: 

{4-) description of the client's behavior; 

{3} the responsibilities of the provider; 

0) confidentiality requirements; 

(4) responsibility — and procedures fef 

securing emergency services; 

{$) responsibilities — fef — supervising — the 

client; 

{£} special dietary considerations; 

f7-) participation — m — appropriate — training 

programs; 

t$rf responsibilities — of both — parties as to 

provision — ef- — client — medical, — dental, 
developmental or treatment services as 
deemed necessary 1 ; 

{9) responsibilities — fef — in s uring — the* — tbe 

client participates m appropriate 

trcatmcnt/habilitation services; 

{40} responsibilities for client transportation; 

{44) termination clause; and 

{43) terms of compensation. 

{d) — The governing body shall maintain a signed 
copy of the agreement in the files, and a signed 
copy shall be given to the provider, 

fe) — Each governing body shall furnish each 
provider — with — a — form — fef — recording — illness, 

accident ef medical concerns, including 

administration of medication. — This form shall be 
maintained by the governing body in the client's 
record. 

Statutory Authority G.S. 122C-26; 143B-147. 

.0107 PROVIDER TRAINING 

{*) — Each provider shall participate in a training 
program prior to the placement of a client in his 
home. 

{b) — The content of the training program shall 
includ e but not be limited to the following: 

(4-) general — overview — ef- — mental — illness, 

mental retardation ef other 

developmental disability, or substance 
abuse, as appropriate; 

{3) administration of medication; 

i$) development ef- — tfre individual 



treatment/habilitation plan; 

(4) confidentiality; 

iS) client rights; and 

{€) principles of behavior management, if 

appropriate. 

Statutory Authority G.S. 122C-26; 143B-147. 

.0108 HOUSEKEEPING ACTIVITIES 

Each — facility — may — assign — clients — te — routine 



housekeeping activities normative for his age and 
development or psychiatric status as specified in 
tfte — individual — client — plan for services — in the 
facility. 

Statutory Authority G. S. 122C-26; 143B-147. 

.0109 TRANSPORTATION 

Each facility shall arrange — ef — provide 

transportation for the client as specified in the 
individual client plan and in emergency situations. 

Statutory Authority G.S 122C-26; 143B-147. 

SECTION .0200 - SUPERVISED 
INDEPENDENT LIVING 

.0201 SCOPE 

Supervised independent living is a residential 
facility which may provide room, board, and care 
to one or more individuals who do not need 2 4 

hour — supervision. Training, — counseling, — and 

variou s — levels — ef- — supervision — are — provided — as 
needed. — Supervised independent living includes 
apartment living and boarding homes and shall be 
designed primarily to serve persons 18 year s of 
age or older with mental illness, mental retardation 
or other developmental disability, or for substance 
abusers — between — 1-6 — and — 34 — year s — ef- — age-: 
Supervised independent living includes apart ment 
living and boarding homes as follows: 

{4j Apartment living is a residential facility 

providing a supervised living 

environment — fef — individuals — wire — afe 

preparing fef independent living. 

Counseling and technical assistance arc 
provided as needed. — Service models may 
include co resident apartments, apartment 
clusters and single resident apartments. 

{a} Co resident apartment is a residential 

facility that features one staff person, 
commonly called a counselor, — living 
with — ene — or two adults — in a single 
apartment. 

fb) Apartment — cluster — is — a — residential 

facility that involves residents living in 
several apartments in the same building 
or scattered sites within an apartment 
complex and is commonly staffed with 
a counselor or manager who resides 
within the same apartment complex. 

(e) Single resident apartment is a 

residential facility that involve s almo s t 
total independent living for adults who 
may reside in a variety of settings dis 



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PROPOSED RULES 



pcrscd throughout the community. 

{3} Boarding home ia a residential facility 

provided — fef — individuals — with — mental 
illness, — mental — retardation — ef — other 
developmental disability, or for substance 
abusers — which — provides — an alternative 
living environment for those individuals 
not yet ready for successful independent 
living. — Training may be provided in the 
areas of health and safety, medication 

administration, use ef- community 

s ervices, management of personal funds, 
acquisition and refinement of self help 
s kills, — acquisition — and — refinement — ef 
individualized — leisure — activities, — and 
personalized counseling service s . — T-h4s 
service is generally less restrictive than 
group homes but more restrictive than 
apartment living. 

Statutory Authority G.S. 122C-26; 143B-147. 

.0202 CAPACITY OF BOARDING HOME 

Each boarding home shall have a capacity of nine 
or fewer clients. 

Statutory Authority G.S. 122C-26; 143B-147. 

.0203 PHYSICAL PLANT REQUIREMENTS 

fa) — A minimum of one ionized smoke detector 
wired into the house current shall be in s talled and 
centrally located. — Additional smoke detectors that 
arc not wired into th e house current shall be 
checked at least monthly by the provider. 

fb) A — dry — powder — ef — CO(2) — type — fife 

extinguisher shall be located in the kitchen and 
s hall be checked at least annually by the local fire 
department. — Each client and provider shall receive 
instruction in its use on his first day of residence. 

fe) — A minimum of two means of exit shall be 
included for each boarding home. 



professional, qualified developmental disabilities 

profes s ional, ef — qualified — substance abuse 

professional, a s appropriate, who has responsibility 
fef — the — client — treatment, — program — ef — ease 
management plan. 

Statutory Authority G.S. 122C-26; 143B-147. 

.0206 SUPPORT SERVICES 

Support services shall be made available to each 
client to assist in meeting individual medical, 
habilitation, treatment, vocational, social and other 
needs. 



Statutory Authority G.S. 122C-26; 143B-147. 

.0207 TREATMENT/HABILITATION PLAN 

With th e e xc e ption of cli e nts s e rv e d in th e oo 
r e sid e nt apartm e nt, eaoh individual oli e nt plan s hall 
oontain docum e ntation that th e individual n ee ds a 
r e sid e ntial s e rvic e with f e w e r than 2 4 hour per day 
supervision, and that the intensity of sup e rvision 
provided by th e faoility is consist e nt with n ee ds 
id e ntifi e d in th e individual's tr e atm e nt/habilitation 
plan. 

Statutory Authority G.S. 122C-26; 143B-147. 

.0208 AGREEMENT: CLIENT/ 

SUPERVISED INDEPENDENT 
LIVING FACILITY 

(a) — A written agreement shall be negotiated 
between each client and the service provider in a 
supervised — independent — living — facility — which 
specifics the responsibilities of the client and the 
provider. 

(b) One copy of the agreement shall be given to 
the client and one copy included in the client's 
record. 

Statutory Authority G.S. 122C-26; 143B-147. 



Statutory Authority G.S. 122C-26; 143B-147. 

.0204 PROGRAM DIRECTOR/ 
COORDINATOR 

Each facility shall have a designated program 
director. 

Statutory Authority G. S. 122C-26; 143B-147. 



.0205 DESIGNATED QUALIFIED 
PROFESSIONAL 

Each — client — admitted — te — a — facility — shall 
receiving services from a qualified mental health 



-be 



.0209 CLIENT TRAINING IN HEALTH 
AND SAFETY 

fa) — Each client shall receive training concerning 
safe and proper methods of using kitchen and 
housekeeping equipment such a s knive s , range, 
exhaust fans, and other electrical appliances. 

fb) — Each client shall have access to firat aid 
supplies and shall receive training in the use of 
these s upplies. 

{e) Eaen — client — shall — receive — in s truction in 

obtaining scr vices in emergency situations. 

fd} Information — en — obtaining — emergency 

service s , including access to available telephones, 



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1239 



PROPOSED RULES 



shall be posted. 

(c) Each client who cannot self medicate shall be 
provided a training program to assist him to be 
less reliant on drug administration by staff and 
more self reliant regarding drug administration. 

Statutory Authority G.S. 122C-26; 143B-147. 



.0210 STAFF REQUIRED: APARTMENT 
LIVING FOR MR/DD CLIENTS 



fa) — The program director for apartment living 
facilities serving mentally retarded or otherwise 
developmentally disabled clients shall be a high 
school graduate or equivalent with three years of 
experience in mental retardation programming or 
q baccalaureate graduate degree with one year of 
experience — m — mental — retardation — &f — other 
developmental disability programming. 

fb) — The staffing patterns of the apartment living 
facility, including the staff to client ratio and the 
use of volunteers. — advocates and other support 
individuals, shall be developed in response to the 
degree — ef- — independence — of residents — and — the 
geographical dispersal of apartment living units, 
(c) The staff to client ratio shall be as follows: 

f4^ co resident apartment at least one staff 

member to each two clients; 

f2) apartment — cluster — at — ieast — eae — staff 

member to each — 12 or fewer clients; 

ana 



m- 



indcpcndcnt living at least one a 

member to each 15 or fewer client ; 



teff 



fd) — When the program director is not available, 
another person shall be designated to serve in that 
capacity. 

Statutory Authority G.S 122C-26: 143B-147. 

.0211 STAFF REQUIRED: APARTMENT 
LIVING PROGRAMS FOR MI/SA 

fa) — Sufficient staff members shall be available to 
the apartment living facilities serving mentally ill 
and s ubstance abuse clients to assist clients in the 
development of necessary skills. 

fb) — Live in s taff shall not be required except in 
co resident apartments. 

Statutory Authority G.S. 122C-26; 143B-147. 



.0212 STAFF REQUIRED: BOARDING 
HOMES 

(a) Suffici e nt staff m e mb e rs shall b e avai l abl e to 
the — boarding — hom e — te — assist — cli e nt s — m — the 
d e v e lopm e nt of n e c e ssary skills. 

fb) — Liv e in staff shall not be required. 



Statutory Authority G.S. 122C-26; 143B-147. 
SECTION .0700 - SUPERVISED LIVING 

.0701 SCOPE 

(a) Supervised living is a residential facility 
designed to serve individuals who require 
supervision when in the residence. 

(b) The primary purpose is to provide services 
in a home environment for the habitation and 
rehabilitation to individuals who are mentally ill, 
have a developmental disability or disabilities, or 
who are substance abusers. 

(c) A supervised living facility shall be licensed 
if the facility serves : 

(1) one or more clients under the age of 
18: or 

(2) two or more adult clients. 

Statutory Authority G.S. 143B-147. 

.0702 HOURS OF OPERATION 

Each facility shall be available to meet the needs 
of of the clients 24 hours per day, 365 days per 
year. 

Statutory Authority G.S. 143B-147. 

.0703 CAPACITY 

(a) A facility shall serve no more than three 
clients when: 

(1) the client lives with a family; and 

(2) the family provides the service. 

(b) With the exception of Paragraph (a) of this 
Rule, a facility shall serve no more than six clients 
when the clients have mental illness or 
developmental disabilities. 

(c) Any facility currently licensed on the 
effective date of this Rule, and providing services 
to more than six clients, may continue to provide 
services at no more than the facility's license 
capacity as of the effective date of this Rule. The 
currently licensed facilities serving more than six 
clients are: 

£jQ 10 NCAC 14L .0500, Group Homes 
for Adult and Elderly Individuals Who 
are Mentally 111; and 

{2j 10 NCAC 14M .0300, Group Homes 
for Adults with Mental Retardation or 
Other Developmental Disabilities. 

Statutory Authority G. S. 143B-147. 

.0704 STAFF REQUIREMENTS 

(a) A minimum of one staff member shall be 



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PROPOSED RULES 



present at all times when any client is on the 
premises. 

(b) Staff-client ratios shall be designed to 
provide staff to respond to individualized client 
needs. 

(c) Staff shall be present in a facility when more 
than one client is present in the following client- 
staff ratios: 

(1) children or adolescents with mental 
illness or emotional disturbance shall be 
served with one staff present for each 
four or fewer clients present; 

(2) children or adolescents with substance 
abuse shall be served with a minimum 
of one staff present for each five or 
fewer minor clients present during 
waking hours; or 

(3) children or adolescents with 
developmental disabilities shall be 
served with one staff present for each 
one to three clients present and two 
staff for each four or more clients 
present. However, only one staff 
member need be present during 
sleeping hours if emergency back-up 
procedures are sufficient to allow only 
one staff member on duty. 

Statutory Authority G.S. 143B-147. 

.0705 SPECIAL STAFFING 
REQUIREMENTS 

(a) In facilities which serve clients who are 
substance abusers: 

(1) at least one staff member who is on 
duty shall be trained in alcohol and 
other drug withdrawal symptoms and 
symptoms of secondary complications 
to alcohol and other drug addiction; 

(2) when the clients are minors, staff shall 
be trained in youth development and 
therapeutic techniques in working with 
youth; and 

(3) the services of a certified alcoholism 
counselor, a certified drug abuse 
counselor or a certified substance abuse 
counselor shall be available on an as- 
needed basis for each client- 
CD) In facilities which serve individuals with 

behavior disorders, in addition to developmental 
disabilities, the staff shall include at least one staff 
member who has received training in the area of 
behavior management through educational prepar- 
ation in special education, psychology or a closely 
related field. 



Statutory Authority G.S. 143B-147. 

.0706 MEDICAL STATEMENT 

(a) Each staff member who works directly with 
clients shall submit to the facility a medical 
statement that has been completed within 30 days 
of employment, from a licensed physician or an 
authorized health professional under the 
supervision of a physician and annually thereafter. 

(b) The medical statement shall be in writing 
and shall indicate the general health of the 
individual and any restrictions required by G.S. 
1 30 A- 1 44 to prevent the transmission, within the 
facility, of tuberculosis or any other communicable 
disease or condition that represents a significant 
risk of transmission within the facility. 

(c) The facility shall keep the most recent 
medical statement on file. 

Statutory Authority G.S. 143B-147. 

.0707 SERVICE COORDINATION 

Coordination shall be maintained between the 
facility operator and the qualified professional who 
is responsible for treatment/ habilitation or case 
management. 

Statutory Authority G.S. 143B-147. 

.0708 PROGRAM ACTIVITIES 

(a) Each client shall have the opportunity to 
participate in the overall operation of the facility 
including participation in routine activities such as 
maintenance and meal preparation. 

fb) Each client shall be involved m treatment, 
rehabilitation, vocational, educational, 
employment, social and community activities on a 
regular basis in accordance with the needs of the 
client. 

(c) For each client with a developmental 
disability, staff shall provide daily training 
activities in accordance with the client's needs. 

Statutory Authority G.S. 143B-147. 

.0709 CLIENT TRAINING IN HEALTH 
AND SAFETY 

(a) Each adolescent and adult client shall receive 
training concerning safe and proper methods of 
using kitchen and housekeeping equipment such as 
knives, range, exhaust fan and other electrical 
appliances. 

(b) Each client shall receive instructions in 
obtaining services in emergency situations. 



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1241 



PROPOSED RULES 



Statutory Authority G.S. 143B-147. 

.0710 PARTICIPATION OF THE FAMILY 
OR LEGALLY RESPONSIBLE 
PERSON 

(a) Each client's family shall be provided the 
opportunity to maintain an ongoing relationship 
with their relative through such means as family 
visits to the facility and visits with the family 
outside the facility. 

(b) Reports to the parent of a minor resident, or 
the legally responsible person of an adult resident, 
shall be submitted at least annually. Reports may 
be in writing or take the form of a conference and 
shall focus on the client's progress toward meeting 
individual goals. 

Statutory Authority G.S. 143B-147. 



SUBCHAPTER 14Q - GENERAL RIGHTS 

SECTION .0300 - GENERAL CIVIL, 
LEGAL AND HUMAN RIGHTS 

.0305 PROTECTION FROM HARM, ABUSE, 
NEGLECT OR EXPLOITATION 

(a) Employees shall protect clients from harm, 
abuse, neglect and exploitation in accordance with 
G.S. 122C-66. 

(b) Employees shall not subject a client to any 
sort of neglect or indignity, or inflict abuse upon 
any client. 

(c) Goods or services shall not be sold to or 
purchased from a client except through established 
governing body policy. 

(d) Employees shall use only that degree of 
force necessary to repel or secure a violent and 
aggressive client and which is permitted by 
governing body policy. The degree of force that 
is necessary depends upon the individual 
characteristics of the client (such as age, size and 
physical and mental health) and the degree of 
aggressiveness displayed by the client. Use of 
intervention procedures shall be compliance with 
Subchapter 14R of this Chapter. 

(e) Any violation by an employee of Paragraphs 
(a) through (d) of this Rule, which has been 
substantiated by duly constituted administrative 
proceedings, shall be grounds for dismissal of the 
employee regardless of whether the employee is 
ultimately convicted of related criminal charges. 

Statutory Authority G.S. 122C-59; 122C-65; 122C- 
66; 143B-147. 



12) 



(23) 
£4) 

(a) 



CHAPTER 18 - MENTAL HEALTH: 
OTHER PROGRAMS 

SUBCHAPTER 18D - CONFIDENTIALITY 
RULES 

SECTION .0200 - RELEASE OF 

CONFIDENTIAL INFORMATION 

WITH CONSENT 

.0209 PERSONS WHO MAY SIGN 
CONSENT FOR RELEASE 

The following persons may sign a consent for 
release of confidential information: 
(1) a competent adult clients- who have not 
been adjudicated incompetent ; 
an adult client who has been adjudicated 
incompetent, when consenting for release 
of information to an attorney; 
the client's legally responsible person; 
a minor clients under the following 
conditions: 
when seeking services for veneral 
disease and other diseases reportable 
under G.S. 130A-134, pregnancy, 
abuse of controlled substances or 
alcohol, or emotional disturbances 
under G.S. 90-21.5; 
when married or divorced; 
when emancipated by a decree issued 
by a court of competent jurisdiction; 
when a member of the armed forces; or 
when consenting for release of 
information to h4s an ewe attorney; and 
personal representative of a deceased 
client if the estate is being settled or next 
of kin of a deceased client if the estate is 
not being settled. 

Statutory Authority G.S. 28A-13.3; 90-21.5; 122C- 
52; 122C-53; 131E-67; 143B-147. 

SUBCHAPTER 18N - OPTIONAL SERVICES 

FOR INDIVIDUALS OF ALL 

DISABILITY GROUPS 

SECTION .0600 - PERSONAL ASSISTANCE 



(b) 
(c) 

(d) 

(e) 

(45) 



.0601 

(a) 



SCOPE 

Personal 



assistance is a service which 



provides aid to a client who has mental illness, 
developmental disabilites or substance abuse so 
that the client can engag e in activities and 
interactions from which the client would otherwise 
be limited or excluded because of his disability or 



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PROPOSED RULES 



disabilities. The assistance includes: 

(1) assistance in personal or regular living 
activities in the client's home; 

(2) support in skill development; or 

(3) support and accompaniment of the 
client in regular community activities or 
in specialized treatment, habilitation or 
rehabilitation service programs. 

fb) If these Rules are in conflict with Medicaid 
rules regarding Personal Care, and Medicaid is to 
be billed, then the Medicaid rules shall prevail . 

Statutory Authority G.S. 143B-147. 

.0602 HOUSING REVIEW 

(a) When personal assistance for a client 
includes service to the client in his or her home, 
one of the purposes of the service is to assist the 
client in an assessment of the safety and sanitation 
of the home. 

(b) If the safety or sanitation is in question, it 
shall be brought to the attention of the client and 
the professional responsible for the 
treatment/habilitation or case management of the 
client, so that the situation can be discussed as a 
part of the regular treatment/habilitation or case 
management planning process. 

Statutory Authority G.S. 143B-147. 

.0603 STAFF TRAINING 

Individuals who are employed to provide 
personal assistance shall have: 
O) at least a high-school diploma; and 
(2) special training regarding the needs -of the 

specific client for whom assistance will 

be provided. 

Statutory Authority G.S. 143B-147. 

.0604 SUPERVISION OF STAFF 

(a) Personal assistance shall be provided under 
the direction of a supervisor who is a qualified 
professional as defined in K) NCAC 14K 
.0103(66) through (71). 

(b) When a specific client's disability is different 
from that for which the supervisor is trained, the 
personal assistance employee shall have access to 
consultation from a qualified professional who is 
trained in a discipline related to the client's needs. 
The rule which is adopted by reference includes 
subsequent amendments and editions of the 
referenced material . 

Statutory Authority G.S. 143B-147. 



.0605 EMERGENCY PRECAUTIONS 

Instead of the instructions set forth in \0 NCAC 
18L .0805, individuals employed to provide 
personal assistance shall be specifically informed 
in each personal assistance arrangement regarding 
safety precautions and 24-hour emergency 
procedures. 

Statutory Authority G.S. 143B-147. 

SECTION .0700 - SUPERVISED 
LIVING 



.0701 SCOPE 

Supervised living is a 



residential service as 



defined in K) NCAC 14Q .0701, other than the 
service is provided to one adult client. Any Rule 
which is adopted by reference in this Section shall 
include subsequent amendments and editions of the 
referenced material. 

Statutory Authority G.S. 143B-147. 

.0702 CROSS-REFERENCE TO HOURS 
OF OPERATION 

Each supervised living service shall comply with 
the hours of operation delineated in K) NCAC 14Q 
.0702. 

Statutory Authority G.S. 143B-147. 

.0703 CROSS-REFERENCE TO STAFF 
REQUIREMENTS 

Each supervised living service shall comp ly with 
the staff requirements delineated in K) NCAC 140 
.0704(a) and (b). 

Statutory Authority G.S. 143B-147. 

.0704 SPECIAL STAFFING 
REQUIREMENTS 

Individuals who provide services to a client in a 
supervised living arrangement shall receive special 
training relevant to the needs of the client served. 

Statutory Authority G.S. 143B-147. 

.0705 CROSS-REFERENCE TO MEDICAL 
STATEMENT 

Each supervised living service shall comply with 
the medical statement requirements delineated in 
10 NCAC 14Q .0706. 

Statutory Authority G.S. 143B-147. 



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1243 



PROPOSED RULES 



.0706 CROSS-REFERENCE TO SERVICE 
COORDESfATION 

Each supervised living service shall comply with 
the service coordination requirements delineated in 
10 NCAC 14Q .0707. 

Statutory Authority G.S. 143B-147. 

.0707 CROSS-REFERENCE TO PROGRAM 
ACTIVITIES 

Each supervised living service shall comply with 
the program activities requirements delineated in 
10 NCAC 140 .0708. 

Statutory Authority G.S. 143B-147. 

.0708 CROSS-REFERENCE TO CLIENT 

TRAINING EV HEALTH AND SAFETY 

Each supervised living service shall comply with 
the program activities requirements delineated in 
10 NCAC 14Q .0709. 

Statutory Authority G.S. 143B-147. 

.0709 CROSS-REFERENCE TO 

PARTICIPATION OF FAMILY 
OR OTHERS 

Each supervised living service shall comply with 
NCAC 140 .0710 regarding participation of 
family or the legally responsible person . 

Statutory Authority G.S. 143B-147. 

SUBCHAPTER 18Q - OPTIONAL 
SERVICES FOR ESfDrVTDUALS WHO 
ARE DEVELOPMENTAL DISABLED 

SECTION .0500 - COMMUNITY' RESPITE 

SERVICES FOR EVDIVIDUALS WITH 

MENTAL RETARDATION, OTHER 

DEVELOPMENTAL DISABILITIES. 

DEVELOPMENTAL DELAYS OR AT RISK 

FOR THESE CONDITIONS 

.0520 SCOPE 

(a) Community respite is a residential support 
service which provides periodic relief for a family 
or family substitute on a temporary basis. While 
overnight service is available, community respite 
may be provided to individuals for periods of less 
than 24 hours on a day or evening basis. 

(b) Attention to the client's everyday nutritional, 
recreational, emotional developmental and physical 
needs are elements of respite care. The service is 
primarily a family support service rather than an 



habilitative service; however, such activities as 
training, therapy and medical treatment, if 
provided, are ancillary to the provision of respite 
care. 

(c) The following three models are examples of 
respite services: 

(1) center-based respite is a residential 
support service in which the individual 
is served at a designated facility which 
has potential for overnight care. While 
an overnight capacity is always a part 
of this service, a respite center may, in 
addition, provide respite services to 
individuals for periods of less than 
twenty-four hours on a day or evening 
basis; 

(2) private home respite is a residential 
support service in which the area 
program or its contract agency contracts 
with community citizens to serve 
individuals in their own home on an 
overnight basis; or 

(3) companion respite is a support service 
in which a trained respite provider is 
scheduled to care for the individual in 
a variety of settings, including the 
individual's own home or other location 
not subject to licensure. 

Statutory Authority G.S. 143B-147. 

.0540 COMPANION RESPITE: 

AGREEMENT WITH PROVTOERS 

(a) Unless outlined in a written job description 
for providers or in written policies and procedures, 
Eeach governing body shall have a written 
agreement signed by each provider of private 
home respite care. 

(b) The provisions of the agreement shall 
include specify the responsibilities of the governing 
body and the provider including : 

(-H &e — responsibilities — of the governing 

body — afid — th* — provider(s) — of respite 

care: 
(21) confidentiality requirements; 
(52) procedures for securing emergency 

services; 
(43) program activities to be implemented; 
(54) responsibilities for supervising the 

respite client; 
(65) procedures related to administration of 

medications; 
(76) participation in respite training 

programs; and 
(87) terms of compensation^ 



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PROPOSED RULES 



(8) client rights; and 

(9) adherence to agency policies and 
procedures. 

(c) A signed copy of the agreement shall be 
maintained by the governing body, and a signed 
copy shall be given to the provider. 

Statutory Authority G.S. 122C-26; 143B-147. 

.0541 COMPANION RESPITE: 
RESPONSIBILITIES OF 
GOVERNING BODY 

{a) — Each governing body shall attempt to match 
the client's need s with the provider's ability to 
provide respite services. 

(b) Each governing body shall make available to 
the provider a written statement of duties and 
responsibilities. 

(4-) This statement shall include length of 

service to be provided, medications to 
be — administered — and — special — dietary 
considerations. 

{3} If- — the — client — k — involved — is — a 

developmental or occupational program, 
the provider shall be provided written 

i nformat ion rcgardi ng h-4-s 

re s ponsibilities — for a s suring that the 
client — attend s — the — program — and — fef 

structuring activities to enhance 

objectives established by tbe 

developmental or occupational program. 
Each governing body shall: 

(1) attempt to match the client's needs with 
the provider's ability to provide respite 
services; 

(2) make available to the provider 
instructions regarding duties and 
responsibilities which shall include, but 
need not be limited to: 

(a) length of time for which service will be 
provided; 

(b) medications to be administered; and 

(c) special dietary considerations; and 

(3) furnish written information to the 
provider, if the client js involved m a 
developmental or occupational program, 
regarding his responsibilities for assuring 
that the client attends the program and 
for structuring activities to enhance 
objectives established by the 
developmental or occupational program. 

Statutory Authority G. S. 143B-147. 

SECTION .0700 - GROUP HOMES FOR 



ADULTS WITH MENTAL RETARDATION 

OR OTHER DEVELOPMENTAL 

DISABILITIES 

.0709 CROSS-REFERENCE TO 
INTRODUCTION 

Eaeh — group home — which — is — net — subject to 
licensure under G.S. 122C, Article 2 shall comply 
with the requirements set forth in 10 NCAC 1 4 M 
.0301. 

Statutory Authority G.S. 143B-147. 

.0710 POPULATION SERVED 

(a) Each group home shall be designed primarily 
to — s erve — mentally — retarded — ef — otherwise 
dcvclopmcntally di s abled individuals who arc at 
least 1 8 years of age and who arc in need of a 
supervised living environment within a community 
setting. 

fb) — No group home shall designate any bed for 
the continuous provision of respite services. 

Statutory Authority G.S. 143B-147. 

.0711 HOURS OF OPERATION 

Each group home shall operate 2 4 hours per day, 
seven days per week, 12 months per year. — Staff 
shall be on call when all clients arc out of the 
home. 

Statutory Authority G.S. 143B-147. 

.0712 ADMISSION DECISION OF 
CLIENT/LEGALLY 
RESPONSIBLE PERSON 

The client or his legally responsible person shall 
make the final decision as to whether to accept the 
group — home — placement — s hould — the — client — be 
accepted for admission. 

Statutory Authority G.S. 143B-147. 

.0713 CROSS-REFERENCE TO 

MANAGING CLIENTS' FUNDS 

fa) — Each group home which is not s ubject to 
licensure under G.S. 122C, Article 2 shall comply 
with the requirements set forth in 10 NCAC 1 4 K 
.0311. 

(b) Each — client, — when — necessary, — shaH — be 

provided training in money management. 

Statutory Authority G.S. 143B-147. 

.0714 ANNUAL INTERNAL ASSESSMENT 



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1245 



PROPOSED RULES 



The group homo program staff shall conduct an 
annual — internal — assessment — ef- — th« — program, 
including the degree of its compliance with the 
standard s , and s hall develop a written plan of 
action — that — addresses — the — correction — ef- — each 
identified deficiency. 

Statutory Authority G.S. 143B-147. 

.0715 CROSS-REFERENCE TO 

COMPLIANCE WITH GROUP 
HOME STANDARDS 

Each — group — home — which — is — net — subject — te 
licensure under G.S. 122C, Article 2 shall comply 
with the requirements set forth in 10 NCAC 1 4 M 



Statutory Authority G.S. 143B-147. 

SECTION .0800 - APARTMENT LIVING 

PROGRAMS FOR ADULTS WITH 

MENTAL RETARDATION OR OTHER 

DEVELOPMENTAL DISABILITIES 

.0801 SCOPE 

fa) — Apartment living is a residential service 
which provides a supervised living environment 
for individuals who are preparing for independent 
living. — Counseling and technical assistance arc 
provided as needed. — Service models may include 
eo resident — apartments, — apartment — clusters — and 
independent apartment living. 

{©) Depending — efl — the — model — of service. 

ancillary services shall be provided as indicated in 
the client's individual program plan. — Apartment 
living programs — may include, but need not be 
limited to, the following three models: 

f+) Co resident apartment. — This level of 

residential — service — requires — ette — staff 
person, commonly called a benefactor, 
living with one or two adults in a single 
apartment. 



m- 



Apartmcnt — cluster. Thi s — levd — ef 

residential — service — involves — residents 



living in several apartments in the same 
building or scattered sites within an 
apartment complex and is staffed with 
a counselor or manager who resides 
within the same apartment complex. 

0) Single Resident Apartment. — This level 

of residential — s ervice — provides — semi 
independent living for individuals who 
reside in a variety of apartment settings 
disbursed throughout the community. 
Afl — apartment — living — counselor — ef 



coordinator provides periodic 

counseling and technical assistance as 
needed, but at least once a month. 

Statutory Authority G.S. 143B-147. 

.0802 POPULATION SERVED 

Each apartment living program shall be designed 
primarily — te — serve — individuals — with — mental 
retardation or other developmental disabilities who 
arc at least — 18 years of age and in need of 
residential support services within a community 
setting. 

Statutory Authority G.S. 143B-147. 

.0803 CROSS-REFERENCE TO 
PROGRAM DntECTOR 



Each 



apartment living program not subject to 
licensure under G.S. 122C, Article 2 shall comply 
with the staffing requirements for program director 
delineated in 10 NCAC 1 4 .020 4 . 

Statutory Authority G.S. 143B-147. 

.0804 CROSS-REFERENCE TO STAFF 

REQUIRED FOR MR/DD CLIENTS 

Each apartment living program not subject to 
licensure under G.S. 122C, Article 2 shall comply 
with the staff/client ratios delineated in 10 NCAC 
1 4 .0210. 

Statutory Authority G.S. 143B-147. 

.0805 COUNSELING SERVICES 

At least one staff member shall be designated to 
provid e counseling to each resident which includes 
provision of information on the availability of 
community — services — te — meet — his — medical, 
educational, vocational and social needs. 

Statutory Authority G.S. 122C-51; 143B-147. 

.0807 ADMISSION DECISION OF 
RESIDENT 

fa) — Each potential client shall be provided the 
opportunity for a personal interview. 

(b) Each client shall have the final decision as to 
his participation in the program should he be 
accepted for admi ss ion. 

Statutory Authority G.S. 122C-51; 143B-147. 

.0808 CROSS-REFERENCE TO 

TREATMENT/HABILITATION 



1246 



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NORTH CAROLINA REGISTER 



October 1, 1993 



PROPOSED RULES 



PLAN 

Each apartment living program not subject to 
licensure under G.S. 122C, Article 2 shall comply 

with tfre requirements regarding the 

trcatmcnt/habilitation plan delineated in 10 NCAC 
1 4 Q .0207. 



Statutory Authority G.S. 143B-147. 

.0809 AGREEMENT BETWEEN 

RESIDENT AND PROGRAM 

{a} — A written agreement s hall be negotiated 
between each resident and the apartment living 
program which specifics the responsibilities of the 
program and the resident. 

{b) — One copy shall be given to the resident and 
one copy included in the resident's record. 

{e) The agreement shall be renegotiated as 

appropriate but at least annually. 

Statutory Authority G.S. 122C-51; 143B-147. 



.0813 ANNUAL INTERNAL ASSESSMENT 

The apartment living program staff shall conduct 
an annual — internal assessment of the program, 
including the degree of its compliance with the 
standards, and shall develop a written plan of 
action that addresses the correction of each identi 
fiod deficiency. 

Statutory Authority G.S. 122C-51; 143B-147. 



.0810 CROSS-REFERENCE TO CLIENT 

TRAINING IN HEALTH AND SAFETY 

Each apartment living program not subject to 
licensure under G.S. 122C, Article 2 shall comply 
with the requirements regarding client training in 
health and safety delineated in 10 NCAC 1 4 
.0209. 

Statutory Authority G. S. 143B-147. 

.0811 MEDICAL AND DENTAL SERVICES 

(a) — Eaoh r e sident shall hav e a d e ntal and phyoi 
cal e xamination within 30 days prior to admission 
and shall b e e noouraged to participat e in a pro 
gram of m e dioal sup e rvision. — If th e r e sid e nt is 
transf e rring from anoth e r compon e nt within th e 
r e sid e ntial servio e syst e m of th e gov e rning body, 
the 30 day r e quir e m e nt shall not apply. 

{b) — Staff shall b e — r e quir e d to e ncourag e e aoh 
r e sid e nt to participat e in a program of m e dioal and 
d e ntal sup e rvision. 

Statutory Authority G.S. 122C-51; 143B-147. 

.0812 CROSS-REFERENCE TO 

MANAGING CLIENTS' FUNDS 

Eaoh apartm e nt living program not subject to 
lic e nsur e und e r G.S. 122C, Articl e 2 shall comply 
with the r e quir e m e nts r e garding managing oli e nt s ' 
funds delineat e d in 10 NCAC 1 4 K .0311. 

Statutory Authority G.S. 143B-147. 



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1247 



PROPOSED RULES 



CHAPTER 45 - COMMISSION FOR MENTAL HEALTH, DEVELOPMENTAL 
DISABILITIES AND SUBSTANCE ABUSE SERVICES 

SUBCHAPTER 45G - MANUFACTURERS: DISTRIBUTORS: DISPENSERS AND 
DISPENSERS OF CONTROLLED SUBSTANCES 

SECTION .0100 - REGISTRATION OFMANUFACTURERS: DISTRIBUTORS 
AND DISPENSERS OF CONTROLLEDSUBSTANCES 

.0104 PERSONS REQUIRED TO REGISTER 

Every person who manufactures, distributes or dispenses any controlled substance or who proposed to 
engage in the manufacture, distribution or dispensing of any controlled substance in this state shall obtain 
annually a registration unless exempted by law or pursuant to .0107 through .0109 of this Section. — Only 
persons actually engaged in such activities are required to obtain a registration; related or affiliated persons 
who are not engaged in such activities are not required to be regi s tered. (For example, a stockholder or 
parent corporation of a corporation manufacturing controlled substances — is not required to obtain a 
registration). 

(a) Every person who manufactures, distributes or dispenses any controlled substance or who proposes to 
engage in the manufacture, distribution or dispensin g of any controlled substance in this state shall obtain 
annually a registration unless exempted by law or pursuant to Rules .0107 through .0109 of this Section. 

(b) Only persons actually engaged in such activities are required to obtain a registration; related or affiliated 
persons who are not engaged m such activities are not required to be registered. (For example, a stockholder 
or parent corporation of a corporation manufacturing controlled substances is not required to obtain a 
registration). 

(c) Any person applying for registration or re-registration shall file, annually, an application for registration 
with the Department of Human Resources and submit the required nonrefundable fee with the application. 
Categories of applicants and the annual fee for each category are as follows: 

CATEGORYFEE 

$125.00 
300.00 
100.00 



ID 


Clinic 


ID 


Hospital 


13} 


Nursing Home 


ill 


Teaching Institution 


£5} 


Researcher 


16] 


Analytical Laboratory 


121 


Distributor 


m 


Manufacturer 



100.00 
125.00 
100.00 
500.00 
600.00 



For any person who applies for registration or re-registration at least six months or less prior to the end of 
the fiscal year, the required annual fee submitted with the application should be reduced by one-half of the 
above listed fee for each category. 

Statutory Authority G.S. 90-100; 90-101; 143B-210(9). 

TITLE 11 -DEPARTMENT a.m. on October 28, 1993 at the Engineering 

OF INSURANCE Division. 410 N. Boylan Avenue, Raleigh, N.C. 

27603. 

l\otice is hereby given in accordance with G.S. 

150B-21.2 that the N.C. Department of Insurance Keason for Proposed Action: To conform to the 

intends to amend rule cited as 11 NCAC 8 .0905. statute. 

1 he proposed effective date of this action is (comment Procedures: Written comments may be 

January 1 , 1994. sent to Owen Tharrington at P.O. Box 26387, 

Raleigh, N.C. 27611. Oral presentations may be 

J\ ,,. , ■ .,, , j . j . n /vn made at the public hearing. Anyone haxing ques- 

he public hearing will be conducted at 9:00 r a j e> i 



1248 8:13 NORTH CAROLINA REGISTER October 1, 1993 



PROPOSED RULES 



tions should call Owen Tharrington at (919) 
733-3901 or Ellen Sprenkel at (919) 733-4529. 

CHAPTER 8 - ENGINEERING AND 
BUILDING CODES DIVISION 

SECTION .0900 - MANUFACTURED 
HOUSING BOARD 

.0905 LICENSING 

(a) Any person employed by a dealer whose 
occupational activity is that of selling on behalf of 
the retail dealership shall be licensed as a salesper- 
son. Each salesperson's license shall be conspicu- 
ously displayed at all times by the dealership 
employing the salesperson. 

(b) A manufactured housing salesperson may be 
allowed to engage in business during the time 
period after making application for a license but 
before s uch license is - granted. 

(b) (e) The following shall not be required to be 
licensed as a manufactured housing dealer: 

(1) Receivers, trustees, administrators, 
executors, guardians or other persons 
appointed by or acting under the judg- 
ment or order of any court; 

(2) Public officials while performing their 
official duties; 

(3) Persons disposing of manufactured 
homes acquired for their own use, 
provided that said home is not used for 
the purpose of avoiding the provisions 
of G.S. 143-143.11; 

(4) Licensed real estate salesmen or bro- 
kers who negotiate or sell a manufac- 
tured home for any individual who is 
the owner of not more than three manu- 
factured homes; 

(5) Banks and finance companies who sell 
repossessed manufactured homes who 
do not maintain a sales lot or building 
with one or more employed retail sales- 
persons. 

(c) {d} Licenses shall be issued by the Board 
whenever the application is in compliance with the 
applicable laws and regulations. Such license shall 
entitle the licensee to conduct the specified busi- 
ness for a period of one year from date of issuance 
or the first day of July, whichever is earlier. The 
Board may, if it deems necessary, cause an investi- 
gation to be made to ascertain if all the require- 
ments set forth in the application are true and shall 
not issue a license to the applicant until it is 
satisfied as to the accuracy of the application. 

(d) {e) Manufactured housing manufacturers, 



dealers, and set-up contractors shall conspicuously 
display their licenses at all times at their place of 
business. 

(e) 0) Whenever a bond is required by G.S. 
143-143.12, before any license shall be issued by 
the Board, the applicant shall deliver to the Board 
a corporate surety bond, cash bond or fixed value 
equivalent. The bond shall be to the Board and in 
favor of any person who shall suffer any loss as a 
result of any violation of the law or administrative 
rules governing manufactured housing. The bond 
shall be for the license period and a new bond or 
proper continuation certificate shall be delivered to 
the Board at the beginning of each license period. 
The bond for one type of license may not be 
considered as the bond for another type of license. 

(f) (g) License fees are as follows: 

(1) three hundred dollars ($300.00) per 
Certificate of Origin plant for manufac- 
tured housing manufacturers; 

(2) two hundred fifty dollars ($250.00) per 
county of operation for manufactured 
housing dealers; 

(3) one hundred dollars ($100.00) per 
county for supplemental manufactured 
housing dealer locations; 

(4) twenty-five dollars ($25.00) for retail 
manufactured housing salesperson; and 

(5) two hundred fifty dollars ($250.00) per 
business location for set-up contractors. 

Statutory Authority G.S. 143-143.10; 143-143.11. 



* * 






Notice is hereby given in accordance with G.S. 
150B-21.2 that the N.C. Department of Insurance 
intends to adopt rules cited as 11 NCAC 16 .0401 
- .0403, .0501 - .0504. 

1 he proposed effective date of this action is 
January 1 , 1994. 

I he public hearing will be conducted at 10:00 
a.m. on November 9, 1993 at the Dobbs Building, 
3rd Floor Hearing Room, 430 N. Salisbury Street, 
Raleigh, N.C. 27611. 

MXeason for Proposed Action: 

II NCAC 16 .0401 - .0403 - Because of legisla- 
tion enacted during the 1993 session of the N. C. 
General Assembly, the Commissioner of Insurance 



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October 1, 1993 



1249 



PROPOSED RULES 



is required to set credit rate deviation standards. 
11 NCAC 16 .0501 - .0504 - Because of legisla- 
tion enacted during the 1993 session of the N. C. 
General Assembly, the Commissioner of Insurance 
is required to set minimum loss ratios. 

Comment Procedures: Written comments may be 
sent to Walter James at P.O. Box 26387, Raleigh, 
N.C. 27611. Oral presentations may be made at 
the public hearing. Anyone having questions 
should call miter James at (919) 733-3284 or 
Ellen Sprenkel at (919) 733-4529. 

CHAPTER 16 - ACTUARIAL SERVICES 
DIVISION 

SECTION .0400 - CREDIT LIFE ACCIDENT 
AND HEALTH RATE DEVIATION 

.0401 DEFINITIONS 

As used in this Section: 
ill 



Class of Business" means one of the 



id) 
CD 



01 



ill 



iaj 



fb) 



following determined by the source of the 
business: 
Credit Unions: 



Commercial Banks and Savings and 

Loan Associations; 

Finance Companies; 

Motor Vehicle Dealers; 

Other Sales Finance; 

All Others. 



"Account" means the ag gregate credit life 
insurance, credit accident and health 
insurance or credit unemployment insur- 
ance coverage for a single plan of insur- 
ance and for a single class of business 
written through a single creditor whether 
coverage is written on a group or individ- 
ual basis. 

"Case" means either a "Single Account 
Case" or a "Multiple Account Case" as 
follows: 
"Single Account Case" means an ac- 
count that is at least 25% credible or. at 
the option of the insurer, any higher 
percentage as determined by the Credi- 
bility Formula as defined in Item (6) of 
this Rule; and 

"Multiple Account Case" means two or 
more accounts of the same plan of 



insurance and class of business having 
similar underwriting characteristics, 
excluding single account cases defined 
in Sub-item (3)(a) of this Rule, and 



14) 
(a) 

£bl 

is! 



Ml 
151 

161 

lai 

£b) 

Isi 

ill 



181 



m 



(10) 

(a) 

(bl 

Isi 

(dl 
(el 



which, when combined, are at least as 
credible as the minimum level of credi- 
bility elected in Sub-item (3)(a) of this 
Rule. 
"Plan of Insurance" means: 
Decreasing term credit life insurance on 
single or joint lives; 
Level term credit life insurance on 
single or joint lives; 
Credit accident and health insurance on 
single or joint lives, with single premi- 
ums which vary by waiting period and 
retroactive or nonretroactive benefits: 
and 

Credit Unemployment insurance on 
single or joint lives. 
"Credibility Factor" means the degree to 
which the past experience of a case can 



be expected to occur in the future. 
"Credibility Formula" means the follow- 
ing process used to calculate the credibil- 
ity factor: 

Determine the incurred claim count 

during the experience period; 

Divide Sub-item (6)(a) of this Rule by 

1082; 

Take the square root of Sub-item (6)(b) 

of this Rule; and 

The credibility factor is the lesser of the 

number one and the results of Sub-item 

(6)(c) of this Rule. 
"Earned Premium at Current Prima Facie 
Rate" means North Carolina earned 
premium, during the experience period, 
restated as though the current prima facie 
rate had been charged. 
"Incurred Claims" means North Carolina 
incurred claims during the experience 
period including the increase in provision 
for incurred (whether reported or not) 
claims from the beginning to the end of 
the period. 

"Expense Loss Ratio" means the lesser of 
40% and the ratio of the insurer's operat- 
ing expenses for a class of business and 
plan of insurance to its earned premium 
for that class of business and plan of 
insurance. 

"Operating Expenses" means any combi- 
nation of the following expenses: 

Commissions; 

Other acquisition; 

General Administration; 



Taxes, licenses, and fees; and 
Profit and contingency margin. 



1250 



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October 1, 1993 



PROPOSED RULES 



(11) "Benchmark Loss Ratio" means the 
percentage of premium that is expected to 
be used to pay losses. It is calculated by 
subtracting the expense loss ratio from 
the number one; however, in no event 
shall the benchmark loss ratio be less 



(12) 
(13) 

(14) 



(15) 



(17) 



(18) 



than 60%. 



"Prima Facie Rate Adjustment Factor" 
means the result of the calculations in 
Item (15) of this Rule. 
"Experience Period" means the period of 
time for which experience is reported, 
but not for a period longer than the most 
recent three years. 

"Incurred Claim Count" means the num- 
ber of North Carolina claims incurred for 
the case during the experience period. 
This means the total number of claims 
reported during the experience period 
(whether paid or in the process of pay- 
ment) plus any incurred but not reported 
at the end of the experience period less 
the number of claims incurred but not 
reported at the beginning of the experi- 
ence period. If a debtor has been issued 
more than one certificate for the same 
plan of insurance, then only one claim ]s 
counted. If a debtor receives credit 
disability or credit unemployment bene- 
fits, then only the initial claim payment 
for that period of disability or period of 
unemployment is counted. 
"Incurred Loss Ratio at Current Prima 
Facie Rate" means the ratio of incurred 
claims, as defined in Item (8) of this 
Rule, to earned premium at current prima 
facie rate, as defined in Item (7) of this 
Rule, for the case. 
(16) "Class of Business Incurred Loss Ratio at 
Current Prima Facie Rate" means the 
ratio of incurred claims, as defined in 
Item (8) of this Rule, to earned premium 
at current prima facie rate, as defined in 
Item (7) of this Rule, for the class of 
business and plan of insurance associated 
with the case. 

"Qualified Actuary" means an individual 
who is a member of the American Acade- 
my of Actuaries or an Associate or Fel- 
low of the Society of Actuaries. 
"Maximum Prima Facie Rate" means the 



current prima facie rate for the case 
multiplied by the prima facie rate adjust- 
ment factor as defined in Item (12) of this 
Rule. 



Statutory Authority G.S. 58-2-40; 58-57-35 (a). 

.0402 GENERAL SUBMISSION 
REQUIREMENTS 

(a) All rate deviation requests, including the data 
required by Rule .0403 of this Section, shall be 
submitted to and stamped received by the Life and 
Health Division. All rate deviation requests shall 
be submitted at least 90 days prior to the end of a 
calendar year, to become effective on the first day 
of the succeeding calendar year, with the exception 
of rate deviations submitted for use in calendar 
year 1994. 

(b) All experience used in the calculation of the 
rate deviation shall only be North Carolina experi- 
ence. 

(c) All deviated rates shall be submitted, in 
accordance with this Rule, to the Life and Health 
Division each succeeding year for revaluation. 

(d) All rate deviation calculations shall be 
performed by a qualified actuary. 

(e) The following information shall be submitted 
in regards to the qualified actuary: 

(1) Name of the qualified actuary; 

(2) Professional designations of the quali- 
fied actuary, e.g. A.S.A., F.S.A., or 
M.A.A.A.; 

(3) Name and address of the company or 
actuarial consulting firm employing the 
qualified actuary; and 

(4) Telephone number (including extension) 
of the qualified actuary. 

(f) The qualified actuary shall include in the 
credit rate deviation request a written statement 
certifying the following: 

(1 ) That the qualified actuary (Name of 
qualified actuary) has reviewed Rules 
.0401 through .0403 of this Section; 

(2) That the qualified actuary certifies that 
all submitted calculations and data 
preparation are in conformity with 
Rules .0401 through .0403 of this 
Section; and 

(3) That all data submitted are accurate and 
in conformity with the Rule .0401 of 
this Section. 

Statutory Authority G.S. 58-2-40; 58-57-35(a). 



.0403 



The 



CALCULATION PROCEDURE & 
DATA REQUIREMENTS FOR RATE 
DEVIATIONS 

results of each calculation and the corre- 



sponding data required to perform each calculation 
shall be submitted in accordance with this Rule 



8:13 



NORTH CAROLINA REGISTER 



October 1, 1993 



1251 



PROPOSED RULES 



and clearly identified for each case for which the 
insurer is requesting a rate deviation: 
(1) Identification of the class of business and 



131 

141 

151 
{61 

121 

181 

121 
(10) 



Oil 

(12) 
(13) 

(14) 

(15) 



(16) 



plan of insurance associated with the 

case. 

Identification of the single or multiple 

account case. For a multiple account 

case, identification of each case. 



For the case, calculate the incurred loss 
ratio at the current prima facie rate as 
defined in Rule .0401(15) of this Section. 
For the case, calculate the credibility 
factor using the credibility formula as 
defined in Rule .0401(6) of this Section- 
Multiply Item (3) of this Rule by Item (4) 
of this Rule. 

For the class of business, calculate the 
class of business incurred loss ratio at 
current prima facie rate as defined in 
Rule .0401(16) of this Section. 
For the class of business, calculate the 
credibility factor using the credibility 
formula as defined in Rule .0401(6) of 
this Section- 
Multiply Item (7) of this Rule by the 
quantity one minus Item (4) of this Rule, 
e.g. Item (7) of this Rule x £1 ; Item {4} 
of this Rule! . 

Multiply Item (6) of this Rule by Item (8) 
of this Rule. 

Multiply the quantity one minus Item (4) 
of this Rule by the quantity one minus 
Item (7) of this Rule, e.g. IT - Item (4) of 
this Rule] x Li : Item {1} of thjs Rule] . 
Multiply .60 by Item (10) of this Rule. 
Add Items (5), (9) and (11) of this Rule. 
Calculate the expense loss ratio as de- 
fined in Rule .0401(9) of this Section. 
Calculate the benchmark loss ratio as 
defined in Rule .0401(11) of this Section- 
Trie prima facie rate adjustment factor is 
equal to Item (12) of this Rule divided by 
Item (14) of this Rule; however, if the 
prima facie rate adjustment factor is less 
than or equal to 1 .05, then the prima 
facie rate adjustment factor shall be set 
equal to the number one. 
The maximum prima facie rate in effect 
for a period of twelve months js equal to 
the current prima facie rate for the case 
multiplied by Item (15) of this Rule. 



Statutory Authority G.S. 58-2-40; 58-57-35(a). 
SECTION .0500 - CREDIT 



UNEMPLOYMENT MINIMUM LOSS 
RATIO STANDARD 

.0501 MINIMUM INCURRED LOSS RATIO 

The premium rates charged for credit unemploy- 
ment insurance shall be reasonable in relation to 
the benefits provided as indicated by a minimum 
annual incurred loss ratio of 60%. 

Statutory Authority G.S. 58-2-40; 58-57-1 10(a). 

.0502 DEFINITIONS 

As used in this Section: 

(1) "Earned Premium" means North Carolina 
credit unemployment earned premium, 
during the experience period, restated as 
though the current North Carolina credit 
unemployment rate had been charged. 
"Incurred Claims" means North Carolina 
credit unemployment incurred claims 
during the experience period. 
"Experience Period" means the period of 
time for which experience is reported, 
but not for a period longer than the most 
recent three years. 

"Incurred Claim Count" means the num- 
ber of North Carolina credit unemploy- 
ment claims incurred during the experi- 
ence period. This means the total num- 



121 



£21 



141 



I5J 



161 



la) 



£bl 



i£l 



idj 



121 



ber of claims reported during the experi- 
ence period (whether paid or in the pro- 
cess of payment) plus any incurred but 
not reported at the end of the experience 
period less the number of claims incurred 
but not reported at the beginning of the 
experience period. Only the initial claim 
payment for that period of unemployment 
is counted. 

"Credibility Factor" means the degree to 
which the past experience can be expect- 
ed to occur in the future. 
"Credibility Formula" means the follow- 
ing process used to calculate the credibil- 
ity factor: 
Determine the incurred claim count 
during the experience period: 
Divide Sub-item (6)(a) of this Rule by 
1082; 

Take the square root of Sub-item (6)fb) 
of this Rule; and 

The credibility factor is the lesser of the 

number one and the results of Sub-item 

(6)(c) of this Rule. 

"Qualified Actuary" means an individual 

who is a member of the American Acade- 



1252 



8:13 



NORTH CAROLINA REGISTER 



October 1, 1993 



PROPOSED RULES 



my of Actuaries or an Associate or Fel- 
low of the Society of Actuaries. 
(8) "Incurred Loss Ratio at Current Credit 
Unemployment Rate" means the ratio of 
incurred claims, as defined in Item (2) of 
this Rule, to earned premium, as defined 
in Item (1) of this Rule. 

Statutory Authority G.S. 58-2-40; 58-57-1 10(a). 

.0503 GENERAL SUBMISSION 
REQUIREMENTS 

(a) All credit unemployment minimum incurred 
loss ratio compliance demonstrations shall be 
submitted to and stamped received by the Life and 
Health Division. All submitted demonstrations 
shall be submitted at least 90 days prior to the end 
of a calendar year, to become effective on the first 
day of the succeeding calendar year, with the 
exception of submitted demonstrations for use ]n 
calendar year 1994. 

(b) All experience used in the demonstration of 
compliance shall only be North Carolina experi- 
ence. 

(c) Ail compliance demonstrations shall be 
submitted, in accordance with this Rule, to the 
Life and Health Division each succeeding year for 
reevaluation. 

(d) Demonstration of compliance, as specified in 
this Rule, shall not be effective until January J_, 
1995. Compliance with this Rule for calendar 
year 1994 shall be satisfied by the submission of 
an actuarial memorandum, by a qualified actuary, 
demonstrating that the submitted credit unemploy- 
ment insurance rates for calendar year 1994 are 
expected to produce at least a 60% incurred loss 
ratio. 

(e) The following information shall be submitted 
in regards to the qualified actuary: 

(1) Name of the qualified actuary; 

(2) Professional designations of the quali- 
fied actuary, e.g. A.S.A., F.S.A., or 
M.A.A.A.; 

(3) Name and address of the company or 
actuarial consulting firm employing the 
qualified actuary; and 

(4) Telephone number (including extension) 
of the qualified actuary. 

(f) The qualified actuary shall include in the 
credit rate deviation request a written statement 
certifying the following: 

(1) That the qualified actuary (Name of 
qualified actuary) has reviewed Rules 
.0501 through .0504 of this Section; 

(2) That the qualified actuary certifies that 



£3} 



all submitted calculations and data 

preparation are in conformity with 

Rules .0501 through .0504 of this 

Section: and 

All data submitted are accurate and in 

conformity with Rule .0502 of this 

Section. 



Statutory Authority G.S. 58-2-40; 58-57-1 10(a). 

.0504 CALCULATION PROCEDURE AND 
DEMONSTRATION OF 
COMPLIANCE 

The results of each calculation and the corre- 
sponding data required to perform each calculation 
shall be submitted in accordance with this Rule by 
each insurer as follows: 

(1) Calculate the incurred loss ratio at cur- 
rent credit unemployment rate as defined 
in Rule .0502(8) of this Section; 

(2) Calculate the credibility factor using the 
credibility formula as defined in Rule 
.0502(6) of this Section; 
Multiply Item (1) of this Rule by Item (2) 
of this Rule; 



(4) 



Multiply .60 by the quantity one minus 
Item (2) of this Rule: 
{5} Add Items (3) and (4) of this Rule; and 
£6} Divide Item (5) of this Rule by .60. 
Compliance with Rule .0501 of this 
Section is satisfied if this quotient js 
equal to or greater than one. If this 
quotient is less than one, then in order to 
satisfy Rule .0501 of this Section the 
insurer shall decrease the current credit 
unemployment rate until the quotient is 
equal to or greater than one. 

Statutory Authority G.S. 58-2-40; 58-57-1 10(a). 



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1253 



PROPOSED RULES 



TITLE 15 A - DEPARTMENT OF 

ENVIRONMENT, HEALTH, AND 

NATURAL RESOURCES 

iSotice is hereby given in accordance with G.S. 
150B-21.2 that EHNR - Environmental Manage- 
ment Commission intends to amend rule cited as 
15A NCAC 2H .0223. 

1 he proposed effective date of this action is 
February 1, 1994. 

1 he public hearing will be conducted at 2:00 
p.m. on November 1 , 1993 at the Ground Floor 
Hearing Room, Archdale Building, 512 N. Salis- 
bury St., Raleigh, N.C. 

LYeason for Proposed Action: To modify an 
existing rule which requires publicly-owned 
wastewater facilities (and public utilities) to take 
certain actions when flows approach the hydraulic 
capacity of the system. The rule changes proposed 
would clarify when facilities are required to take 
action to comply with the rule and the type of 
action needed. 

(comment Procedures: All persons interested in 
these matters are imited to attend. Comments, 
statements, data and other information may be 
submitted in writing prior to, during or within 10 
days after the hearing or may be presented 
verbally at the hearing. All written comments must 
be received by November 11 in order to be 
included in the hearing record. Verbal statements 
at the hearing may be limited at the discretion of 
the hearing officer. Please contact Mr. Dennis 
Ramsey for additional information at (919) 
733-5083. Written comments should also be 
directed to him at the Division of Environmental 
Management, Water Quality Section, P.O. Box 
29535, Raleigh, North Carolina 27626-0535. 

tLditor's Note: This Rule was filed as a 
temporary rule effective September 13, 1993 for 
a period of 180 days or until the permanent rule 
becomes effective, whichever is sooner. 

L 1 iscal Note: This Rule affects the expenditures or 
rexenues of local funds. A fiscal note was 
submitted to the Fiscal Research Division on 



September 10, 1993, OSBM on September 10, 
1993, N. C. League of Municipalities on September 
10, 1993, and N. C. Association of County Com- 
missioners on September 10, 1993. 

CHAPTER 2 - ENVIRONMENTAL 
MANAGEMENT 

SUBCHAPTER 2H - PROCEDURES FOR 
PERMITS: APPROVALS 

.0223 DEMONSTRATION OF FUTURE 
WASTEWATER TREATMENT 
CAPACITIES 

In order to insure that treatment systems do not 
exceed their hydraulic treatment capacities, no 
permits for sewer line extensions will be issued to 
wastewater treatment systems owned or operated 
by municipalities, counties, sanitary districts or 
public utilities after January 1^ 1994 unless they 
meet the following requirements: 

(1) Prior to exceeding 80 percent of the 
wastewater treatment system's permitted 
hydraulic capacity (based on the average 
of the previous three — months flow of 
calendar year 1993 or any subsequent 
calendar year) , the permittee must submit 
an approvable engineering evaluation of 
their future wastewater treatment needs. 
This evaluation must outline specific 
plans for system — expansion — including 
meeting future wastewater treatment 
needs by either expansion of the existing 
system, elimination or reduction of extra- 
neous flows, or water conservation and 
must include the source(s) of funding for 
the expansion improvements . If expan- 
sion is not proposed, a detailed justifica- 
tion must be made based on past growth 
records and future growth projections 
and/or on and, as appropriate, shall 
include conservation plans or other spe- 
cific plans for the removal of infiltra 
tion/inflow measures to achieve waste 
flow reductions . 

(2) Prior to exceeding 90 percent of the 
wastewater treatment systems permitted 
hydraulic capacity, (based on the average 
of the — previous three — months flow of 
calendar year 1993 or any subsequent 
calendar year ), the permittee must obtain 
all permits needed for the expansion of 
the wastewater treatment system and, if 
construction is needed, submit approvable 
final plans and specifications for expan- 



1254 



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PROPOSED RULES 



sion of the wastewater treatment system 
including a construction schedule. If 
expansion is still not proposed, a detailed 
justification must be made based on past 
growth records and future growth 
projections and/or on and, as a ppropriate, 
shall include conservation plans or other 
specific plans — fef — the — removal — ef 
infiltration/inflow measures to achieve 
waste flow reductions . 

{£) The Director may on a case by case 

basis, until December 31, 1993, allow 
permits to be issued to facilities that arc 
exceeding the 8 percent or 90 percent 
loading rates if the additional flow is not 
projected — te — result — m — the — facility 
exceeding its permitted hydraulic capacity 
and it is demon s trated to his satisfaction 
that adequate progress is being made in 
developing — the — needed — engineering 
evaluations or plans and specifications. 

Statutory Authority G.S. 143-215.3. 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Wildlife Re- 
sources Commission intends to amend rules cited 
as 15A NCAC 10E .0004 and 10F .0360. 

1 he proposed effective date of this action is 
January 1 , 1994. 

1 he public hearing will be conducted at 10:00 
a.m. on October 18, 1993 at the Archdale Build- 
ing, 512 N. Salisbury Street, Room 332, Raleigh, 
NC 27604-1 188. 

Keasonfor Proposed Action: 

15A NCAC 10E .0004 - To restrict activities on 

fishing areas. 

15A NCAC 10F .0360 - To establish a no wake 

zone in the vicinity of the Thomas Boat Dock. 

Ksomment Procedures: Interested persons may 
present their views either orally or in writing at 
the hearing. In addition, the record of hearing 
will be open for receipt of written comments from 
October 1, 1993 to November 1, 1993. Such 
written comments must be delivered or mailed to 
the N. C. Wildlife Resources Commission, 512 N. 



Salisbury Street, Raleigh, NC 27604-1188. 

CHAPTER 10 - WILDLIFE RESOURCES 
AND WATER SAFETY 

SUBCHAPTER 10E - FISHING AND 
BOATING ACCESS AREAS 

.0004 USE OF AREAS REGULATED 

(a) No person shall leave any vehicle, boat 
trailer or other obstruction on any access area in 
such a location, position or condition that it will 
prevent, impede, or inconvenience the use by other 
persons of any ramp or other facility constructed 
for the purpose of launching or landing boats. No 
person shall leave parked any vehicle, boat, boat 
trailer or other object at any place on any access 
area other than on such place or zone as is desig- 
nated as an authorized parking zone and posted or 
marked as such. 

(b) No person shall possess a loaded firearm on 
any boat access area. No person shall operate a 
vehicle on any boat access area in a manner so as 
to endanger life or property. 

(c) No person, when using any access area, shall 
deposit any debris or refuse anywhere on the 
grounds of the area. No person, when using any 
access area, shall do any act which is prohibited or 
neglect to do any act which is required by signs or 
markings placed on such area under authority of 
this Regulation for the purpose of regulating the 
use of the area. At any time when all designated 
parking zones on any access area are fully occu- 
pied, any person may enter and use such facilities, 
provided such person makes other arrangements 
for parking and violates none of the provisions of 
this Regulation or the signs or markings made or 
posted pursuant hereto. 

(d) No person shall operate a motorboat in the 
public waters of North Carolina within 50 yards of 
a Commission-owned or managed boat launching 
ramp at greater than "no wake" speed. For the 
purpose of this Regulation, "no wake" speed shall 
mean idling speed or a slow speed creating no 
appreciable wake. 

(e) Except where facilities are provided, it is 
unlawful to use any boating access area for pur- 
poses other than the launching of boats and park- 
ing vehicles and boat trailers. All other 
uses— including swimming, skiing, camping, 
building fires, operating concessions or other 
activities not directly involved with launching of 
boats— are expressly prohibited. 

(f) U Except where facilities are provided and 
approved uses are posted, it is unlawful to use any 



8:13 



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October 1, 1993 



1255 



PROPOSED RULES 



public fishing area for purposes other than fishing. 
All prohibited uses and activities shall be posted 
including possession of loaded firearms, 
swimming, discharging — firearm 3 , launching or 
mooring jet skis or boats, skiing, building fires, 
operating concessions, or other activities not 
directly associated with fishing. 



Statutory Authority G.S. 
75 A- 14. 



113-134; 113-264; 



SUBCHAPTER 10F - MOTORBOATS 
AND WATER SAFETY 

SECTION .0300 - LOCAL WATER 
SAFETY REGULATIONS 

.0360 GRAHAM COUNTY 

(a) Regulated Area. This Rule applies to the 
waters and portions of waters described as follows: 

(1) Lake Santeetlah Boat Dock on Lake 
Santeetlah in Graham County. 

(2) Entrance of Fontana Boat Dock in 
Fontana Lake in Graham County. 

(3) Thomas Boat Dock on Fontana Lake in 
Graham County. 

(b) Speed Limit. No person shall operate a 
vessel at greater than no-wake speed within 50 
yards of the regulated areas as described in 
Paragraph (a) of this Rule. 

(c) Placement and Maintenance of Markers. 
The Graham County Board of Commissioners is 
designated as a suitable agency for the placement 
and maintenance of markers implementing this 
Rule. 

Statutory Authority G.S. 75A-3; 75A-15. 

TITLE 21 - OCCUPATIONAL 
LICENSING BOARDS 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Board of 
Landscape Architects intends to amend rules cited 
as 21 NCAC 26 .0206 - .0207, .0209 - .0211 and 
repeal .0205 and .0208. 

1 he proposed effective date of this action is 
January 1, 1994. 

1 he public hearing will be conducted at 10:00 
a.m. on October 21 , 1994 at the North Carolina 
Board of Landscape Architects, 3733 Benson 



Drive, Raleigh, NC 27609 . 

MXeason for Proposed Action: To satisfy recom- 
mendations and remove objections made by the 
Rules Review Commission to rules previously filed. 

(comment Procedures: Written comments must be 
submitted to Robert Upton, A PA Coordinator, 
3733 Benson Drive, Raleigh, NC 27609, up to and 
including November 1 , 1993. 

CHAPTER 26 - LICENSING 

BOARD OF 
LANDSCAPE ARCHITECTS 

SECTION .0200 - PRACTICE OF 

REGISTERED LANDSCAPE 

ARCHITECTS 

.0205 FORMS OF PRACTICE 

(a) G e n e ral. Th e praotio e of landscape architec - 
tur e may b e carri e d on by sol e practition e rs, 
partn e rships, or within prof e ssional corporations 
regist e r e d with the Board to p e rform landsoape 
archit e ctural — s e rvic e s, — provid e d — aH — those — whe 
praotio e ar e duly lic e ns e d, and th e firm is properly 
d e scribed and d e fined by its nam e and titl e . 

(b) Partn e rship Praotio e . — When e ver the praotioe 
of landsoape architecture is carri e d on by partner 
ship, at least on e partner shall b e a landsoap e 
archit e ct. 

(0) An application for corporate practice shall b e 
mad e upon forms provid e d by th e Board aooompa 
ni e d by th e r e quir e d corporat e application f ee . 

fd-) — Corporat e certificat e s of r e gistration shall 
r e main e ffectiv e from date of issu e until Jun e 30 



Mk 



dat e of 



Th e r e n e wal 



lowing dat e ot s uch r e gistration, 
of annual corporate c e rtificates will b e mad e upon 
written application of th e hold e r accompani e d by 
th e r e quir e d r e n e wal f ee . 

(e) — Failure to apply for renewal of corporat e 
c e rtificat e r e quir e s automatic — r e vocation of th e 
c e rtificat e . Such r e vok e d c e rtificate may bo rein 
stated within 12 month s from th e dat e of revoca 
tion upon paym e nt of th e r e quir e d r e n e wal f ee plus 
th e r e quir e d lat e paym e nt p e nalties if th e Board 
find s s uch corporation is then otherwise qualifi e d 
and entitl e d to r e n e wal of c e rtificat e of registra 
tton . 

(f) All rul e s of th e Board applicable to individu 
a\ — landsoap e — archit e ct s — s hall — apply — e qually — to 
corporat e praotio e and to th e practice of licensees 
as offic e rs or e mploy ee s of suoh corporation. — AH 



1256 



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October 1, 1993 



PROPOSED RULES 



corporations, whether organized under the Busi 
ncss Corporation Act, Chapter 55, or the Profes 
s ional Corporation Act, Chapter 55B, shall be 
required — te — obtain — a — certificate — fef — corporate 
practice prior to using the designation "Landscape 
Architect", "Land s cape Architecture" or "Land 
scape Architectural". 

(g) A foreign landscape architectural corporation 
may qualify and receive a corporate certificate for 
corporate practice in North Carolina upon a show 
ing satisfactory to the Board that it conforms with 
the General Statutes of North Carolina and the 
rules of this Board. — The s ame application and 
certificate fee and renewal fees s hall be applicable 
to firms incorporated in other states as arc required 
for North Carolina corporations. 

(h) All landscape architectural firm s incorporat 
cd after April 15, 1971 must be incorporated under 
the — Professional — Corporation — Aet; — Gr-S: — 55B. 
Firms — incorporated — fef — landscape — architectural 
practice before April — 1-5^ — 1071 may apply for 
certificate under the Busine ss Corporation Act, 
G.S. 55, accompanied by the required corporate 
application fee. 

{i} — Public Agency Practice. — A landscape archi 
tcct employed by a public agency, including an 
educational institution, shall be considered to be an 
individual practitioner with the public as the client, 
(j) Combined Design and Construction (Design 
Build) Practice. — Because of this inherent conflict 
of interest with construction services, the land 
scape — architect — wbe — a4se — provides — contracting 
services shall do the following: 

{44 Use the term "limited landscape archi 

tcctural services" in all representations 
to the public and the client. 

{3} Affix a notation on each construction 

drawing — and the — cover of technical 
s pecifications stating "These construe 
tion drawings and technical specifica 
tions represent the full extent of the 
limited landscape architectural services 
provided for this project". 
{k) — Supervision of Practice. — Each office main 
taincd for the preparation of drawings, specifica 
tions, reports or other professional work shall have 
a registered landscape architect present and rcgu 
larly employed in that office who shall have direct 
knowledge and s upervisory control of such work, 
except field offices maintained only for the pur 
pose of project construction administration shall 
have at least one qualified employee present with 
the — supervising — landscape architect — maintaining 
control and making periodic visits. 



Statutory Authority G. S. 89A-3(c). 

.0206 NAME OF FIRM 

(a) Exclusion of Non-Licensed Individuals. The 
name of a landscape architectural firm shall not 
include the proper name of any officer or employ- 
ee who is not a licensed landscape architect, 
architect, geologist, land surveyor or professional 
engineer. 

(b) Associate. The word "associate" may be 
used only with reference to a licensee who is a 
principal or regular employee of the firm. The 
plural form may be used only when justified by the 
number of licensees in addition to those licensees 
whose proper names are included in the firm 
name. 

(c) Example: Proper Name and (&) Associates 
shall refer to a principal landscape architect and at 
least two licensed landscape architectural employ- 
ees. 

(d) Example: Proper Name Associates shall 
refer to at least one principal landscape architect 
and at least one licensed landscape architectural 
employee. 

(e) Example: Assumed Name Associates shall 
refer to at least one principal landscape architect 
and at least one licensed landscape architectural 
employee, or two or more principal landscape 
architects. 

(f) Names Previously in Effect. This Rule shall 
not be construed to require any firm to seek 
approval of, or to change, any name duly adopted 
in conformity with board rules in effect at the date 
of such adoption. 

Statutory Authority G.S. 55B-5; 89A-3(c). 

.0207 APPLICATION OF 

PROFESSIONAL SEAL 

(a) Use of Seal. The seal(s) of the landscape 
architect(s) responsible for the work and the 
landscape architectural corporation seal, if appro- 
priate, shall be applied to the following docu- 
ments: 

Drawings and specifications prepared 

for public agency approval. 

Drawings and specifications issued for 

the purpose of bidding, negotiation or 

construction. 

Reports of technical nature. 

Letters and certificates of professional 

opinion. 

(b) Standard Design Documents are defined as 
drawings and specifications prepared by another 
and obtained by the Landscape Architect for 



(1) 



(2) 



(3) 

(4) 



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October 1, 1993 



1257 



PROPOSED RULES 



review and certification by the Landscape Archi- 
tect . Drawings and specifications which utilizo in 
whol e or part "otandard deoign dooumentfl" pr e par e d 
by a publio ag e noy or anoth e r landooap e arohiteot 
rogioterod in this state or anoth e r stat e or oountry 
Such drawings may be sealed by the succeeding 
landscape architect registered in North Carolina 
provided: 

(1) the origin of the "standard design docu- 
ments" appears on each drawing or 
sheet of the documents prepared sealed 
by tho public agency or the original 
landscape architect; 

(2) the succeeding North Carolina land- 
scape architect clearly identifies all 
modifications of the standard design 
documents; 

(c) The seal of the succeeding North Carolina 
landscape architect shall bo placed on each sheet 
identified as containing "standard design docu- 
ments" is prima facie evidence that the landscape 
architect whose seal is affixed assumes responsibil- 
ity for the adequacy of the standard design for its 
specific application in North Carolina, including 
conformance with applicable codes and ordinances. 

(d) The seal(s) shall be applied only to docu- 
ments prepared personally or under the immediate 
supervision of the landscape architect whose seal 
is affixed. 

(e) Signature and Date. The individual's seal or 
facsimile thereof shall have the landscape 
architect's original signature across its face and the 
effective date shall be indicated below or 
elsewhere on the document. 

(f) Co-authorship. When a document requiring 
seals has been co-authored and by the landscape 
architect and another licensed design professional 
of another discipline, the landscape architect shall 
indicate by notation each portion for which he or 
she is responsible. 

(g) Failure to use the professional seal according 
to this Rule shall be deemed by the Board to be 
"unprofessional conduct" within the meaning of 
G.S. 89A-7 . 

Statutory Authority G.S. 89A-3(c); 89A-7. 

.0208 IMPROPER CONDUCT 

(a) The — following — wtH — con s titute improper 

conduct: — violation — ef- — board — rules, — dishonest 
practice, — unprofessional — conduct, — incompetence, 
conviction of a felony, or addiction habits of such 
character as to render the landscape architect unfit 
to continue professional practice. 

{bj — Definition. — "The appearance of improper 



conduct" i3 defined as "a circumstance which calls 
into qucation a landscape architect's professional 
conduct, motives or work performance. " 

ie) — Duty of the Board. — When the Board is 
notified in writing of a "an appearance of improper 
conduct" it shall send a "letter of inquiry" to the 

landscape — architect — allegedly — involved. After 

receiving and considering the response from the 
landscape architect it may send additional "letters 
of inquiry" to the landscape architect and all other 
persons allegedly involved. 

fd) — Findings of the Board. — Upon consideration 
of responses — to — the — inquiries — the — Board — shall 
determine what action shall be taken. 

{e) If board determines that no disciplinary 

action is necessary, all parties previously contacted 
shall be informed by letter. 

ff) — If the Board determines that there is "an 
appearance of improper conduct" but no formal 
hearing is warranted, the landscape architect shall 
be — seat — a — "letter of warning" — stipulating — the 
Board's — cause — tor — concern — and — recommending 
corrective action by the landscape architect. Other 
persons previously contacted shall be informe d-that 
the Board has acted upon the matter. — The "letter 
of warning" and related documents shall remain in 
the landscape architect's permanent file. 

(g) If the Board determines that a formal hearing 
should be held, the landscape architect and others 
allegedly involved shall be notified according to 
the statute on hearings. 

(h-) — If the Board determines that another person 
allegedly involved is an architect, geologist, land 
surveyor — ef — professional — engineer, — relevant 
information shall be sent by letter to that person's 
professional board. 

Statutory Authority G. S. 89A-3(c). 

.0209 UNPROFESSIONAL CONDUCT 

(a) The following representations or acts, among 
others, constitute "unprofessional conduct" within 
the meaning of G.S. 89A-7: 

(1) to allow one's name to be associated 
with an undertaking in any professional 
capacity without having served 
specifically in that capacity; 

(2) to accept compensation in whole or in 
part from fees, commissions, earnings, 
commercial or speculative profit 
emanating from sales of materials or 
services provided to a Landscape 
Architect's client by others; 

(3) to make exaggerated or misleading 
statements or claims about any personal 



1258 



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PROPOSED RULES 



qualifications, experience or 
performance; 

(4) to fail to disclose to a client or 
employer the existence of any financial 
interest which even remotely bears 
upon the Landscape Architectural 
services or project; 

(5) to fail to respond within 30 calendar 
days to any inquiry from this Board; 

(6) to fail to properly supervise his or her 
practice. Each office maintained for 
the preparation of drawings, 
specifications, reports or other 
professional work shall have a 
registered landscape architect 
employed in that office who shall have 
direct knowledge and supervisory 
control of such work, except field 
offices maintained only for the purpose 
of project construction administration 
shall have at least one employee present 
with the supervising landscape architect 
maintaining control and making 
periodic visits. 

(b) Duty of the Board. When the Board 
becomes aware of alleged unprofessional conduct, 
it shall send a "letter of inquiry" to the Landscape 
Architect allegedly involved and to the 
complainant. The Landscape Architect shall reply 
to this and any other inquiry of the Board within 
30 calendar days. After receiving and considering 
the response from the Landscape Architect, the 
Board may send additional letters of inquiry to the 
Landscape Architect and other persons allegedly 
involved. 

(c) Findings of the Board. Upon consideration 
of responses to inquiries, the Board shall 
determine what action shall be taken: 

(1) if this Board determines that no 
disciplinary action is necessary, all 
parties previously contacted shall be so 
informed; 

(2) if this Board determines there is an 
appearance of "unprofessional 
conduct", but no formal hearing is 
warranted, the Landscape Architect 
shall be sent a "letter of warning" 
stipulating the Board's cause for 
concern and recommending corrective 
action by the Landscape Architect. 
Other persons previously contacted 
shall be informed that the Board has 
acted upon the matter; 

(3) if this Board determines that a formal 
hearing should be held, G.S. 150B is 



applicable; 

(4)if this Board determines that another 
person allegedly involved is an 
Architect, Geologist, Land Surveyor, or 
Professional Engineer relevant 
information shall be sent by letter to the 
respective professional board, 
{d} — Consequence s of "unprofessional conduct" 
are set forth in G.S. 8 9A 7. 

Statutory Authority G.S. 89A-3(c); 89A-7. 

.0210 DISHONEST PRACTICE 

(a) The following practices, among others, 
constitute "dishonest practice" within the meaning 
of G.S. 89A-7: 

(1) to knowingly make any deceptive or 
false statement about another's 
professional work or to maliciously 
injure or attempt to injure the 
prospects, practice or employment 
position of those so engaged; 

(2) to knowingly make any deceptive or 
false statements in an application for 
examination or in any other statements 
or representations to this Board, to any 
public agency, to a prospective or 
actual client, or to another Landscape 
Architect; 

(3) to fail to notify this Board, if registered 
as a Landscape Architect in North 
Carolina, of disciplinary action by a 
Landscape Architectural Board in 
another jurisdiction. 

(b) Because of the inherent conflict of interest 
with construction services, the landscape a rchitect 
who also provides contracting services rCombined 
Design and Construction (Design-Build) Practicel 
shall be deemed by the Board to be engaged in 
"dishonest practice" unless he does the following: 

(1) Uses the term "limited landscape 
architectural services" i_n all 
representations to the public and the 
client. 

(2) Affixes a notation on each construction 
drawing and the cover of technical 
specifications stating "These 
construction drawings and technical 
specifications represent the full extent 
of the limited landscape architectural 
services provided for this project". 

(be) Duty of the Board. When the Board 
becomes aware of alleged dishonest practice, it 
shall send a "letter of inquiry" to the Landscape 
Architect allegedly involved and to the 



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1259 



PROPOSED RULES 



complainant. The Landscape Architect shall reply 
to this and any other inquiry of the Board within 
30 calendar days. After receiving and considering 
the response from the Landscape Architect, the 
Board may send additional letters of inquiry to the 
Landscape Architect and other persons allegedly 
involved. 

(ed) Findings of the Board. Upon consideration 
of responses to inquiries, the Board shall 
determine what action shall be taken: 

( 1 ) if this Board determines that no 
disciplinary action is necessary, all 
parties previously contacted shall be so 
informed; 

(2) if this Board determines there is an 
appearance of "dishonest practice", but 
no formal hearing is warranted, the 
Landscape Architect shall be sent a 
"letter of warning" stipulating the 
Board's cause for concern and 
recommending corrective action by the 
Landscape Architect. Other persons 
previously contacted shall be informed 
that the Board has acted upon the 
matter; 

(3) if this Board determines that a formal 
hearing should be held, G.S. 150B is 
applicable; 

(4) if this Board determines that another 
person allegedly involved is an 
Architect, Geologist, Land Surveyor, or 
Professional Engineer relevant 
information shall be sent by letter to the 
respective professional board. 

fd— ) — Consequences of "dishonest practice" arc 
set forth in G.S. 89 A 7. 

Statutory Authority G. S. 89A-3(c); 89A-7. 

.0211 INCOMPETENCE 

(a) The following acts or omissions, among 
others, are deemed to be "incompetence" within 
the meaning of G.S. 89A-7: 

(1) to attempt to perform professional 
services which are beyond the 
qualifications which the landscape 
architect and those who are engaged as 
consultants are qualified by education, 
training and experience in the specific 
technical areas involved; 

(2) to fail to use diligence in planning, 
designing, supervising, managing or 
inspecting landscape architectural 
projects directly resulting in improper 
and unprofessional practices and results; 



(3) to plan, perform, or supervise work for 
clients in such a manner and with such 
results as to be below the level of 
professional competency exercised and 
expected of other landscape architects 
of good standing who are practicing in 
the area; 

(4) to be guilty of such acts or omissions as 
to demonstrate to the satisfaction of the 
Board that the holder of the certificate 
is physically or mentally incompetent or 
habitually addicted to habits of such 
character as to render the licensee unfit 
to continue practice. 

(b) Duty of the Board. When the Board 
becomes aware of alleged incompetence, it shall 
send a "letter of inquiry" to the Landscape 
Architect allegedly involved and to the 
complainant. The Landscape Architect shall reply 
to this and any other inquiry of the Board within 
30 calendar days. After receiving and considering 
the response from the Landscape Architect, the 
Board may send additional letters of inquiry to the 
Landscape Architect and other persons allegedly 
involved. 

(c) Findings of the Board. Upon consideration 
of responses to inquiries, the Board shall 
determine what action shall be taken: 

(1) if this Board determines that no 
disciplinary action is necessary, all 
parties previously contacted shall be so 
informed; 

(2) if this Board determines there is an 
appearance of "incompetence", but no 
formal hearing is warranted, the 
Landscape Architect shall be sent a 
"letter of warning" stipulating the 
Board's cause for concern and 
recommending corrective action by the 
Landscape Architect. Other persons 
previously contacted shall be informed 
that the Board has acted upon the 
matter; 

(3) if this Board determines that a formal 
hearing should be held, G.S. 150B is 
applicable; 

(4) if this Board determines that another 
person allegedly involved is an 
Architect, Geologist, Land Surveyor, or 
Professional Engineer relevant 
information shall be sent by letter to the 
respective professional board. 

{4) — Consequences of "incompetence" are set 
forth in G.S. 89A 7. 



1260 



8:13 



NORTH CAROLINA REGISTER 



October 1, 1993 



PROPOSED RULES 



Statutory Authority G.S. 89A-3(c); G.S. 89A-7. 



* * * * 



rl:********* 



Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina State Board of 
Opticians intends to amend rules cited as 21 
NCAC 40 .0112, .0202, .0314. 

1 he proposed effective date of this action is 
January 1 , 1994. 

1 he public hearing will be conducted at 9:00 
a.m. on November 1 , 1993 at the Auditorium of 
NC Medical Society Bldg. , 222 North Person 
Street, Raleigh, NC 27601. 



(2) of apprenticeship, 

(3) of internship, and 

{A) of completion of apprenticeship, 

{§) of completion of internship, and 

(4) {6) of licensure. 

(c) Statements: 

(1) for licensure renewal, 

(2) for annual apprentice continuation of 
training renewal of registration of ap- 
prenticeship , and 

(3) for annual business registration. 

(d) Other forms: 

(1) completion of apprenticeship, and 

(2) completion of internship. 

Statutory Authority G. S. 90-249. 

SECTION .0200 - CONDUCT OF 
REGISTRANTS 



Mxeasonfor Proposed Action: 
21 NCAC 40 .0112 - To better describe Board 
forms. 

21 NCAC 40 .0202 - To prescribe minimum 
equipment and to establish date of expiration of 
annual registration for optical place of business. 
21 NCAC 40 .0314 - To establish date of expira- 
tion of annual registration for apprentice; to 
clarify number of trainees who can be trained 
simultaneously under one person; and to provide 
for Board-approved training courses. 

Lsomment Procedures: Interested persons may 
present statements, orally and in writing, at the 
public hearing or in writing prior to the hearing by 
mail or hand delivery addressed to NC State Board 
of Opticians, 222 N. Person St., Suite 102, P.O. 
Box 25336, Raleigh, NC 27611-5336. 

CHAPTER 40 - BOARD OF OPTICIANS 

SECTION .0100 - LOCATION 

.0112 FORMS 

(a) Applications: 

(1) for admission to sit for examination, 

(2) to register place of business, 

(3) to register apprentices, 

(4) to register interns, 

(5) to register as training establishment, 
and 

(6) for out of state applicants. 

(b) Certificates: 

(1) of registration of business, 



.0202 REGISTRATION OF PLACE OF 

BUSINESS; MINIMUM EQUIPMENT 

(a) As used in this Rule, "optical place of 
business" means the principal office as well as 
each branch office of such a business. 

(b) Every optical place of business shall have a 
licensed optician in charge, who shall serve as the 
registered licensee in charge of only one optical 
place of business. 

(c) Every optical place of business shall main- 
tain on its premises the following, minimum 
equipment in working condition: 

(1) a lensmeter, for verifying that lenses 
being dispensed are of the correct 
power, 

(2) a measuring device for measuring and 
verifying pupillary distances and seg- 
ment placement in multifocal lenses, 
and 

(3) sufficient optical hand tools for the 
adjustment of frames to the proper 
alignment on the patient's face. 

(d) {e) Every optical place of business shall be 
registered with the Board within ten days following 
its opening for business and thereafter annually 
and in the event of relocation, change of owner- 
ship or change of licensed optician in charge. The 
registration fee shall be paid for each registration. 

(e) Registration of an optical place of business 
automatically expires on the first day of July of 
each year, and it shall not engage in business until 
it is registered for the next annual period. 

(f) (d) Registration is the responsibility of both 
the licensed optician in charge and the owner. 
Any licensed optician in charge of an optical place 



8:13 



NORTH CAROLINA REGISTER 



October 1, 1993 



1261 



PROPOSED RULES 



of business which violates the registration require- 
ments of this Rule shall be subject to the Board's 
disciplinary authority under G.S. 90-249(b). An 
injunction closing an unregistered optical place of 
business may also be obtained. 

(g) fe) An optical place of business registered 
in compliance with this Rule is eligible to be a 
training establishment when the requirements of 
Rules .0304, .0314 and .0321 of this Chapter are 
met. 

Statutory Authority G. S. 90-243; 90-249; 90-252; 
90-253. 

SECTION .0300 - QUALIFICATIONS: 
APPLICATIONS: AND LICENSING 

. 03 1 4 APPRENTICESHIP AND INTERNSHD? 
REQUIREMENTS: REGISTRATION 

(a) Each apprentice or intern entering the ap- 
prenticeship or internship shall register with the 
Board and be issued a certificate of registration. 
Registration of the apprenticeship automatically 
expires on the first day of July of each year, and, 
in order for the apprenticeship to continue, regis- 
tration must be renewed each succeeding July \ 
until the apprenticeship is completed. If the 
apprenticeship or internship is to be supervised by 
an ophthalmologist or optometrist, the supervisor 
will provide a statement in which he agrees to 
abide by the same requirements as would an 
optician providing the same training. 

(b) Part-time work or work as an optical sales- 
man or consultant shall not apply toward comple- 
tion of apprenticeship or internship. 

(c) An applicant, through apprenticeship or 
internship^ shall have received his training by 
working full time, defined as a minimum of 35 
hours per week, under the supervision of a li- 
censed optician, ophthalmologist, or optometrist 
following a curriculum approved by the Board. 

(d) No more than two persons, whether appren- 
tices or interns or a combination, may be trained 
by a single an optician, ophthalmologist, or optom- 
etrist at any the same time. 

(e) An apprentice or intern shall be credited 
with training time only from the date of registra- 
tion with the Board as an apprentice or intern. 
Except as provided by the Board for good cause 
shown, the apprenticeship or internship may not be 
interrupted for more than 12 months at the time. 

(f) When registering to serve a six month intern- 
ship, the applicant must have completed the three 
and one-half years of apprenticeship as required by 
G.S. 90-240(a)(2) and (3) or have completed the 



course of training required by G.S. 90-240(a)(l). 

(g) The Board shall make available to apprentic- 
es a list of Board-approved training courses which 
the Board recommends that a pprentices take as 
being of assistance to them in preparation for the 
examination for licensure. 

Statutory Authority G.S. 90-249. 

TITLE 25 - OFFICE OF STATE 
PERSONNEL 

iSotice is hereby given in accordance with G.S. 
150B-21.2 that the Office of State Personnel/State 
Personnel Commission intends to adopt rules cited 
as 25 NCAC IE . 1501 - . 1506. 

1 he proposed effective date of this action is 
January 1 , 1994. 

1 he public hearing will be conducted at 9:00 
a.m. on October 19, 1993 at the Administration 
Building, Third Floor Conference Room, 116 W. 
Jones Street, Raleigh, N.C 27603. 

ixeason for Proposed Action: These rules are 
proposed to be adopted in order to provide guid- 
ance in implementing rules on child involvement 
leave which will promote employees ' involvement 
in the education of youth and promote employees' 
assistance to schools. 

Lsomment Procedures: Interested persons may 
present statements either orally or in writing at the 
Public Hearing or in writing prior to the hearing 
by mail addressed to: Barbara A. Coward, Office 
of State Personnel, 116 W. Jones Street, Raleigh, 
N.C. 27603. 

CHAPTER 1 - OFFICE OF 
STATE PERSONNEL 

SUBCHAPTER IE - EMPLOYEE 
BENEFITS 

SECTION .1500 - CHILD 
INVOLVEMENT LEAVE 

.1501 PURPOSE AND USES 

The purpose of child involvement leave ]s to 
promote employees' involvement in the education 
of youth and to promote employees' assistance to 



1262 



8:13 



NORTH CAROLINA REGISTER 



October 1, 1993 



PROPOSED RULES 



schools. Employees may take leave under this 
Section to: 

(1) Meet with a teacher or administrator of 
any elementary school, middle school, 
high school or child care program autho- 
rized to operate under the laws of the 
State of North Carolina concerning the 
employee's children, step-children, or 
children over whom the employee has 
custody. 

(2) Attend any function sponsored by the 
school or child care program as defined 
in Item (1) of this Rule in which the 
children, step-children, or children over 
whom the employee has custody are 
participating. 

(3) To perform school-approved volunteer 
work approved by the teacher, school 
administrator, or program administrator. 



. 1 505 NON-CUMULATIVE 

Leave not taken in a calendar year will be for- 
feited: it will not be carried over into the next 
calendar year. 

Statutory Authority G.S. 126-4(5). 

.1506 SEPARATION 

Employees will not be entitled to payment for 
this leave upon separation from State government. 

Statutory Authority G.S. 126-4(5). 



Statutory Authority G.S. 126-4(5). 

.1502 AMOUNT OF LEAVE 

(a) Full-time permanent, probationary, and 
trainee employees may take up to eight hours of 
paid leave each calendar year regardless of the 
number of children. The eight hours of leave will 
be credited to employees on January 1 of each 
year. The eight hours of leave for part-time 
employees will be prorated based on the propor- 
tion they work of full-time. 



(b) New employees will be credited with the full 
eight hours of leave immediately upon their em- 
ployment. 

Statutory Authority G.S. 126-4(5). 

.1503 APPROVAL OF LEAVE 

(a) Employees must receive approval from their 
supervisor to use this leave. 

(b) Leave, not to exceed eight hours, should be 
granted for the period of time requested by the 
employee. An agency, however, may require that 
the leave be taken at a different time, based on the 
needs of the agency. 

Statutory Authority G.S. 126-4(5). 

.1504 INTER-AGENCY TRANSFER 

If any em ployee transfers to another State agen- 
cy, any balance of the eight hours not used shall 
be transferred to the new agency. 

Statutory Authority G.S. 126-4(5). 



8:13 



NORTH CAROLINA REGISTER 



October 1, 1993 



1263 



LIST OF RULES CODIFIED 



1 he List of Rules 


Codified is a listing of rules that were filed with OAH in the month indicated. 


J\ey: 




Citation 


= Title, Chapter, Subchapter and Rule(s) 


AD 


= Adopt 


AM 


= Amend 


RP 


= Repeal 


With Chgs 


= Final text differs from proposed text 


Corr 


= Typographical errors or changes that requires no rulemaking 


Eff. Date 


= Date rule becomes effective 


Temp. Expires = Rule was filed as a temporary rule and expires on this date or 180 days 



TITLE 



NORTH CAROLINA ADMINISTRATIVE CODE 
AUGUST 93 
DEPARTMENT TITLE DEPARTMENT 



1 


Administration 


17 


Revenue 


: 


Agriculture 


19A 


Transportation 


4 


Commerce 


21 


Occupational Licensing Boards 


10 


Human Resources 




26 - Landscape Architects 


n 


Insurance 




46 - Pharmacy 


12 


Justice 




63 - Social Work 


13 


Labor 


23 


Community Colleges 


15A 


Environment, Health, 
and Natural Resources 







Citation 


AD 


AM 


RP 


With 

Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


1 NCAC 37 .0306 




/ 




/ 




08/30/93 




2 NCAC 52B .0210 




/ 








08/13/93 


180 DAYS 


4 NCAC 2R .1903 




/ 








09/01/93 




3J .0101 


/ 










09/01/93 




.0201 - .0203 


/ 










09/01/93 




.0204 


/ 






/ 




09/01/93 




.0205 


/ 










09/01/93 




.0301 


/ 










09/01/93 




.0302 


/ 






/ 




09/01/93 




.0303 - .0304 


/ 










09/01/93 




4 NCAC 3J .0305 


/ 






/ 




09/01/93 




.0306 


/ 










09/01/93 







1264 



8:13 



NORTH CAROLINA REGISTER 



October 1, 1993 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


.0401 - .0402 


• 










09/01/93 




16G .0312 




/ 








09/01/93 




10 NCAC 3R .0214 


/ 










09/01/93 


180 DAYS 


.0304 




/ 








09/01/93 


180 DAYS 


.0305 




/ 








08/11/93 


180 DAYS 


.0309 




/ 








09/01/93 


180 DAYS 


.0321 




/ 








09/01/93 


180 DAYS 


.1402 






/ 






09/01/93 


180 DAYS 


.1404 - .1409 






/ 






09/01/93 


180 DAYS 


.1413 - .1419 


/ 










09/01/93 


180 DAYS 


.1613 - .1616 




/ 








09/01/93 


180 DAYS 


.1713 - .1715 




/ 








09/01/93 


180 DAYS 


.1716 






/ 






09/01/93 


180 DAYS 


.1717- .1719 




/ 








09/01/93 


180 DAYS 


.1902 






/ 






09/01/93 


180 DAYS 


.1904- .1908 






/ 






09/01/93 


180 DAYS 


.1912 - .1918 


/ 










09/01/93 


180 DAYS 


.2113 - .2119 




/ 








09/01/93 


180 DAYS 


.2314- .2320 


/ 










09/01/93 


180 DAYS 


.2702 - .2707 






/ 






09/01/93 


180 DAYS 


.2710- .2711 






/ 






09/01/93 


180 DAYS 


.2713 - .2719 


/ 










09/01/93 


180 DAYS 


.3101 - .3108 


/ 










09/01/93 


180 DAYS 


.3201 - .3207 


/ 










09/01/93 


180 DAYS 


.3301 - .3306 


/ 










09/01/93 


180 DAYS 


.3401 - .3407 


/ 










09/01/93 


180 DAYS 


.3501 - .3507 


/ 










09/01/93 


1 80 DAYS 


.3601 - .3607 


/ 










09/01/93 


180 DAYS 


.3701 - .3707 


/ 










09/01/93 


180 DAYS 


.3801 - .3807 


/ 










09/01/93 


180 DAYS 


.3901 - .3908 


/ 










09/01/93 


180 DAYS 


10 NCAC 3R .4001 - .4012 


/ 










09/01/93 


180 DAYS 


26H .0202 




/ 








08/06/93 


180 DAYS 





8:13 



NORTH CAROLINA REGISTER 



October 1, 1993 



1265 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


.0204 




/ 




/ 




09/01/93 




42W .0001 - .0002 




/ 








08/13/93 


180 DAYS 


50B .0311 




/ 








09/01/93 




.0313 




/ 








09/01/93 




.0403 




/ 








09/01/93 




.0406 




/ 








09/01/93 




11 NCAC 11C .0105 




/ 








09/01/93 




12 NCAC 11 .0106 




/ 








09/01/93 




13 NCAC 7 SOC 










/ 






7 A .0707 










/ 






7F .0101 




/ 








08/16/93 


180 DAYS 


.0201 




/ 








10/04/93 




15A NCAC 2B .0304 




/ 








10/01/93 




2P .0101 




/ 








09/01/93 




.0202 




/ 








09/01/93 




.0401 




/ 




/ 




09/01/93 




.0402 




/ 








09/01/93 




.0404 - .0405 




/ 








09/01/93 




.0407 




/ 








09/01/93 




31 .0001 










/ 






3J .0103 










/ 






8A .0202 










/ 






.0302 










/ 






8C .0002 










/ 






13B .0201 












10/09/93 


Temp. 
Expired 


.0501 




/ 








10/09/93 




.1601 - .1604 


/ 






/ 




10/09/93 




.1617 - .1637 


/ 










10/09/93 




.1680 


/ 










10/09/93 




13C .0201 - .0202 










/ 






15A NCAC ISA .1720 










/ 






.1723 










/ 









1266 



8:13 



NORTH CAROLINA REGISTER 



October 1, 1993 



LIST OF RULES CODIFIED 



Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


.2618 










/ 






19A .0204 










/ 






.0406 


/ 










08/09/93 


180 DAYS 


20 A .0006 




/ 








08/09/93 


180 DAYS 


24 A .0202 




/ 








08/09/93 


180 DAYS 


25 .0213 










/ 






17 NCAC 8 .0101 - .0103 






/ 






09/01/93 




9F .0001 - .0003 






/ 






01/01/94 




9G .0101 






/ 






01/01/94 




.0105 










/ 






.0304 










/ 






.0501 






/ 






01/01/94 




.0510 






/ 






01/01/94 




.0513 






/ 






01/01/94 




9H .0201 






/ 






01/01/94 




.0301 






/ 






01/01/94 




.0304 






/ 






01/01/94 




.0401 - .0403 






/ 






01/01/94 




.0405 - .0408 






/ 






01/01/94 




91 .0403 










/ 






9J .0101 - .0102 






/ 






01/01/94 




.0201 






/ 






01/01/94 




19A NCAC 2B .0119 
transferred to 

19A NCAC 2B .0315 












10/01/93 




19A NCAC 2B .0124 
transferred to 

19A NCAC 2B .0316 












10/01/93 




.0151 










/ 






19A NCAC 2B .0161 
transferred to 

19A NCAC 2E .0427 












10/01/93 




19A NCAC 2B .0163 
transferred to 

19A NCAC 2B .0317 












10/01/93 




.0216 










/ 







8:13 



NORTH CAROLINA REGISTER 



October 1, 1993 



1267 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


.0221 










/ 






2D .0402 










/ 






.0408 










/ 






.0804 










/ 






.0806 










/ 






.0808 - .0812 










/ 






.0816 - .0817 










/ 






.0819 - .0823 










/ 






.0828 










/ 






2E .0202 










/ 






.0217 










/ 






.0404 - .0405 










/ 






.0418 










/ 






21 NCAC 26 .0204 






/ 






08/30/93 




.0301 










/ 






46 .1317 




/ 




/ 




09/01/93 




.1503 




/ 




/ 




09/01/93 




.1605 


/ 










09/01/93 




.1802 




/ 








09/01/93 




.1809 


/ 






/ 




09/01/93 




.2201 




/ 








09/01/93 




63 .0104 




/ 




/ 




09/01/93 




.0201 




/ 




/ 




09/01/93 




.0306 




/ 








09/01/93 




.0401 




/ 




/ 




09/01/93 




23 NCAC 1A .0001 


/ 






/ 




09/01/93 




.0003 


/ 










09/01/93 




.0005 


/ 






/ 




09/01/93 




IB .0001 


/ 






/ 




09/01/93 




.0003 


/ 










09/01/93 




23 NCAC IB .0004 


/ 






/ 




09/01/93 




.0005 


/ 










09/01/93 




.0006 - .0008 


/ 






/ 




09/01/93 







1268 



8:13 



NORTH CAROLINA REGISTER 



October 1, 1993 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


2A .0001 - .0005 






/ 






09/01/93 




2B .0101 - .0103 






/ 






09/01/93 




.0104 


/ 










09/01/93 




.0204 






/ 






09/01/93 




.0205 




/ 








09/01/93 




.0301 - .0302 




/ 








09/01/93 




.0303 






/ 






09/01/93 




2C .0101 - .0102 




/ 




/ 




09/01/93 




.0103 






/ 






09/01/93 




.0105 - .0106 




/ 




/ 




09/01/93 




.0107 




/ 








09/01/93 




.0202 




/ 




/ 




09/01/93 




.0204 




/ 








09/01/93 




.0205 - .0206 






/ 






09/01/93 




.0208 




/ 








09/01/93 




.0209 - .0210 


/ 










09/01/93 




.0301 




/ 




/ 




09/01/93 




.0302 - .0303 






/ 






09/01/93 




.0305 




/ 




/ 




09/01/93 




.0401 - .0402 






/ 






09/01/93 




.0501 - .0502 




/ 








09/01/93 




.0603 




/ 




/ 




09/01/93 




.0604 




/ 








09/01/93 




.0701 - .0703 




/ 




/ 




09/01/93 




.0704 - .0705 






/ 






09/01/93 




2D .0101 




/ 




/ 




09/01/93 




.0103 - .0104 




/ 




/ 




09/01/93 




.0105 






/ 






09/01/93 




.0201 - .0205 




/ 




/ 




09/01/93 




.0301 




/ 




/ 




09/01/93 




23 NCAC 2D .0302 






/ 






09/01/93 




.0303 




/ 








09/01/93 




.0305 




/ 




/ 




09/01/93 







8:13 



NORTH CAROLINA REGISTER 



October 1, 1993 



1269 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


.0306 






/ 






09/01/93 




.0310 




/ 




/ 




09/01/93 




.0312 




/ 




/ 




09/01/93 




.0314 




/ 




/ 




09/01/93 




.0317 






/ 






09/01/93 




.0318 




/ 




/ 




09/01/93 




.0320 




/ 




/ 




09/01/93 




.0323 - .0326 




/ 




/ 




09/01/93 




.0328 






/ 






09/01/93 




.0601 - .0602 




/ 




/ 




09/01/93 




.0603 - .0604 






/ 






09/01/93 




2E .0101 - .0102 




/ 




/ 




09/01/93 




.0103 - .0104 






/ 






09/01/93 




.0201 




/ 




/ 




09/01/93 




.0202 






/ 






09/01/93 




.0301 - .0304 






/ 






09/01/93 




.0305 




/ 




/ 




09/01/93 




.0401 - .0403 




/ 




/ 




09/01/93 




.0501 




/ 




/ 




09/01/93 




.0502 






/ 






09/01/93 




.0602 




/ 




/ 




09/01/93 




.0603 






/ 






09/01/93 




3A .0101 - .0102 


/ 






/ 




09/01/93 




.0103 


/ 










09/01/93 




.0104 - .0112 


/ 






/ 




09/01/93 




.0114 


/ 






/ 




09/01/93 




.0201 - .0204 


/ 






/ 




09/01/93 




.0205 


/ 










09/01/93 




.0206 - .0208 


/ 






/ 




09/01/93 




.0209 - .0210 


/ 










09/01/93 




23 NCAC 3 A .0211 - .0214 


/ 






/ 




09/01/93 





7270 



8:13 



NORTH CAROLINA REGISTER 



October 1, 1993 



RRC OBJECTIONS 



1 he Rules Review Commission (RRC) objected to the following rules in accordance with G.S. 
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d). 



ADMINISTRATION 

Department of Administration's Minimum Criteria 

/ NCAC 39 .0101 - Purpose 
No Response from Agency 
Agency Responded 

1 NCAC 39 .0301 - Exceptions to Minimum Criteria 

No Response from Agency 
Agency Responded 

AGRICULTURE 

North Carolina State Fair 

2 NCAC 20B .0106 - General 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management 

15 A NCAC 7H .2002 - Approval Procedures 
15A NCAC 7H .2004 - General Conditions 

Environmental Management 

15A NCAC 2H . 1110 - Implementation 

Agency Responded 

Agency Responded 

Agency Responded 

Agency Responded 

No Response from Agency 
15 A NCAC 2L .0103 - Policy 

HUMAN RESOURCES 

Children's Services 



RRC Objection 
Obj. Cont'd 
Obj. Cont'd 
RRC Objection 
Obj. Cont'd 
Obj. Cont'd 



06/17/93 
07/15/93 
08/20/93 
06/17/93 
07/15/93 
08/20/93 



RRC Objection 09/17/93 



RRC Objection 09/17/93 
RRC Objection 09/17/93 



RRC Objection 
Obj. Cont'd 
Obj. Cont'd 
Obj. Cont'd 
Obj. Cont'd 
Obj. Cont'd 
RRC Objection 



02/18/93 
03/18/93 
05/19/93 
06/17/93 
07/15/93 
08/20/93 
09/17/93 



10 NCAC 41 R .0002 - Administration and Organization 
Agency Responded 

LICENSING BOARDS AND COMMISSIONS 

Foresters 

21 NCAC 20 .0020 - Certification of Consulting Foresters 
21 NCAC 20 .0021 - Rejection of Consultant Affidavit 
21 NCAC 20 .0022 - Handling of Complaints 



RRC Objection 
Obj. Cont'd 



07/15/93 
08/20/93 



RRC Objection 09/17/93 
RRC Objection 09/17/93 
RRC Objection 09/17/93 



8:13 



NORTH CAROLINA REGISTER 



October 1, 1993 



1271 



RRC OBJECTIONS 



Landscape Architects 



21 NCAC 26 .0205 - Forms of Practice 

Rule Returned to Agency 

Agency Filed Rule for Codification Over RRC Objection 
21 NCAC 26 .0207 - Application of Professional Seal 

Rule Returned to Agency 

Agency Filed Rule for Codification Over RRC Objection 
21 NCAC 26 .0208 - Improper Conduct 

Rule Returned to Agency 

Agency Filed Rule for Codification Over RRC Objection 



RRC Objection 06/17/93 

07/15/93 

Eff. 08/01/93 

RRC Objection 06/17/93 

07/15/93 

Eff. 08/01/93 

RRC Objection 06/17/93 

07/15/93 

Eff 08/01/93 



TRANSPORTATION 



Division of Highways 



19 A NCAC 2D .0801 
19A NCAC 2D .0802 
19A NCAC 2D .0803 



Pre-Qualifying to Bid: Re qualification 

Invitation to Bid 

Advertisement and Invitations for Bids 



19A NCAC 2D .0821 - Return of Bid Bond or Bid Deposit 



RRC Objection 09/17/93 

RRC Objection 09/17/93 

RRC Objection 09/17/93 

RRC Objection 09/17/93 



1272 



8:13 



NORTH CAROLINA REGISTER 



October 1, 1993 



RULES INVALIDATED BY JUDICIAL DECISION 



1 his Section of the Register lists the recent decisions issued by the North Carolina Supreme Court, 
Court of Appeals, Superior Court (when available), and the Office of Administrative Hearings which 
invalidate a rule in the North Carolina Administrative Code. 



1 NCAC 5A .0010 - ADMINISTRATIVE PROCEDURES 

Thomas R. West, Administrative Law Judge with the Office of Administrative Hearings, declared two portions 
of Rule 1 NCAC 5 A .0010 void as applied in Stauffer Information Systems, Petitioner v. The North Carolina 
Department of Community Colleges and The North Carolina Department of Administration, Respondent and 
The University of Southern California, Intervenor-Respondent (92 DOA 0666). 

10 NCAC 3H .0315(b) - NURSING HOME PATIENT OR RESIDENT RIGHTS 

Dolores O. Nesnow, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 10 
NCAC 3H .0315(b) void as applied in Barbara Jones, Petitioner v. North Carolina Department of Human 
Resources, Division of Facility Services, Licensure Section, Respondent (92 DHR 1192). 

10 NCAC 3R .1124(f) - ACCESSIBILITY TO SERVICES 

Beecher R. Gray, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 10 
NCAC 3R .1124(f) void as applied in Britthaven, Inc. d/b/a Britthaven of Morganton, Petitioner v. N.C. 
Department of Human Resources, Division of Facility Services, Certificate of Need Section, Respondent and 
Valdese Nursing Home, Inc. , Respond ent-Intervenor (92 DHR 1 785) . 

15A NCAC 30 .0201(a)(1)(A) - STDS FOR SHELLFISH BOTTOM & WATER COLUMN LEASES 

Julian Mann III, Chief Administrative Law Judge with the Office of Administrative Hearings, declared Rule 
15A NCAC 30 .0201(a)(1)(A) void as applied in William R. Willis, Petitioner v. North Carolina Division of 
Marine Fisheries, Respondent (92 EHR 0820). 

15A NCAC 19A .0202(d)(10) - CONTROL MEASURES - HIV 

Brenda B. Becton, Administrative Law Judge with the Office of Administrative Hearings, declared Rule 15A 
NCAC 19A .0202(d)(10) void as applied in ACT-UP TRIANGLE (AIDS Coalition to Unleash Power Triangle), 
Steven Harris, and John Doe, Petitioners v. Commission for Health Services of the State of North Carolina, 
Ron Levine, as Assistant Secretary of Health and State Health Director for the Department of Environment, 
Health, and Natural Resources of the State of North Carolina, William Cobey, as Secretary of the Department 
of Environment, Health, and Natural Resources of the State of North Carolina, Dr. Rebecca Meriwether, as 
Chief, Communicable Disease Control Section of the North Carolina Department of Environment, Health, and 
Natural Resources, Wayne Bobbin Jr. , as Chief of the HIV/STD Control Branch of the North Carolina 
Department of Environment, Health, and Natural Resources, Respondents (91 EHR 0818). 



8:13 NORTH CAROLINA REGISTER October 1, 1993 1273 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions 
along with an index to all recent contested cases decisions which are filed under North Carolina's 
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available 
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698. 



AGENCY 



CASE 
NUMBER 



AU 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



ADMINISTRATION 

LMS Express, Inc. v. Administration, Div of Purchase & Contract 
Stauffer Information Systems v. Community Colleges & Administration 
McLaurin Parking Co. v. Administration 
Warren H. Arlington Jr. v. Division of Purchase & Contract 

ALCOHOLIC BEVERAGE CONTROL COMMISSION 



92 DOA 0735 


Morgan 


06/04/93 




92 DOA 0803 


West 


06/10/93 


8:7 NCR 613 


92 DOA 1662 


Morrison 


04/02/93 


8:3 NCR 320 


93 DOA 0132 


West 


07/21/93 





Alcoholic Beverage Control Comm. v. Ann Oldham McDowell 
Curtis Ray Lynch v. Alcoholic Beverage Control Comm. 
Alcoholic Beverage Control Comm. v. Ezra Everett Rigsbee 
Alcoholic Beverage Control Comm. v. F^rtnership, Phillip Owen Edward 
Alcoholic Beverage Control Comm. v. Gary Morgan Neugent 
Alcoholic Beverage Control Comm. v. Azzat Aly Amer 
Alcoholic Beverage Control Comm. v. Kirfcy Ronald Eldridge 
Alcoholic Beverage Control Comm. v. Gloria Black McDuffie 
Alcoholic Beverage Control Comm. v. Larry Isacc Hailstock 
Alcoholic Beverage Control Comm. v. Anthony Ralph Cecchini Jr. 
Johnnie L. Baker v. Alcoholic Beverage Control Commission 
RAMSAC Enterprises, Inc. v. Alcoholic Beverage Control Comm. 
Alcoholic Beverage Control Comm. v. Aubrey Rudolph Wallace 
Alcoholic Beverage Control Comm. v. Mermaid, Inc. 
Alcoholic Beverage Control Comm. v. Majdi Khalid Wahdan 
Cornelius Hines T/A Ebony Lounge v. Alcoholic Beverage Ctl. Comm. 
Alcoholic Beverage Control Comm. v. Homer fttrick Godwin Jr. 
Alcoholic Beverage Control Comm. v. Wanda Lou Ball 
Charles Anthonious Mo rant v. Alcoholic Beverage Control Comm. 
Alcoholic Beverage Control Comm. v. Billy Fincher McSwain Jr. 
Jean Hoggard Askew v. Alcoholic Beverage Control Commission 
ABC Comm. v. Partnership/T/A Corrothers Comty Ctr & Private Club 
Alcoholic Beverage Control Comm. v. James Elwood Alphin 
Alcoholic Beverage Control Comm. v. James William Campbell 
Barbara Locklear v. Alcoholic Beverage Control Commission 
Zachary Andre Jones v. Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Comm. v. Richard Donald James Jr. 
Charles Edward Hare, Club Paradise v. Alcoholic Beverage Ctl. Comm. 
Alcoholic Bev. Control Comm. V. Mild & Wild, Inc., Sheila Scholz 



92 ABC 0260 


Morgan 


04/01/93 


92 ABC 0288 


Gray 


05/18/93 


92 ABC 0702 


West 


07/30/93 


92 ABC 0978 


Gray 


05/28/93 


92 ABC 1086 


Bee ton 


03/22/93 


92 ABC 1 149 


Reilly 


09/01/93 


92 ABC 1153 


Chess 


04/26/93 


92 ABC 1476 


West 


05/26/93 


92 ABC 1483 


Reilly 


04/07/93 


92 ABC 1690 


Morgan 


06/29/93 


92 ABC 1735 


Chess 


05/07/93 


93 ABC 0002 


Morrison 


07/02/93 


93 ABC 0047 


Gray 


05/28/93 


93 ABC 0076 


Gray 


08/04/93 


93 ABC 0087 


Bee ton 


07/06/93 


93 ABC 0118 


Morrison 


08/04/93 


93 ABC 0125 


Reilly 


05/13/93 


93 ABC 0182 


Nesnow 


07/29/93 


93 ABC 0232 


Chess 


07/20/93 


93 ABC 0239 


Gray 


08/26/93 


93 ABC 0255 


West 


09/10/93 


93 ABC 0318 


Reilly 


07/22/93 


93 ABC 0326 


Gray 


08/26/93 


93 ABC 0327 


Gray 


08/09/93 


93 ABC 0395 


West 


09/14/93 


93 ABC 0421 


West 


09/13/93 


93 ABC 0431 


Nesnow 


09/01/93 


93 ABC 0644 


Gray 


08/10/93 


93 ABC 1475 


Nesnow 


03/23/93 



8:9 NCR 785 



COMMERCE 



Lester Moore v. Weatherization Assistance Program 
CRIME CONTROL AND PUBLIC SAFETY 



93 COM 0105 



Gray 



03/08/93 



George W. Paylor v. Crime Victims Compensation Comm. 
Steven A. Barner v. Crime Victims Compensation Comm. 
Anthony L. Hart v. Victims Compensation Comm. 
Jennifer Avers v. Crime Victims Compensation Comm. 
Janie L. Howard v. Crime Victims Compensation Comm. 
Isabelle Hyman v. Crime Victims Compensation Comm. 
James G. Pellom v. Crime Control &. Public Safety 
Norman E. Brown v. Victims Compensation Commission 
Moses H. Cone Mem Hosp V. Victims Compensation Comm. 
David & Jane Spano v. Crime Control & Public Safety 
Phillip Edward Moore v. Crime Control &. Public Safety 



91 CPS 1286 


Morgan 


04/27/93 




92 CPS 0453 


Nesnow 


06/01/93 




92 CPS 0937 


Chess 


03/01/93 




92 CPS 1195 


Reilly 


03/19/93 




92 CPS 1787 


Reilly 


03/26/93 




92 CPS 1807 


Morrison 


05/24/93 




93 CPS 0034 


Gray 


05/05/93 




93 CPS 0141 


West 


07/07/93 




93 CPS 0152 


Nesnow 


04/02/93 


8:3 NCR 327 


93 CPS 0160 


Nesnow 


07/30/93 


8:10 NCR 862 


93 CPS 0169 


Nesnow 


05/20/93 





1274 



8:13 



NORTH CAROLINA REGISTER 



October 1, 1993 



CONTESTED CASE DECISIONS 



AGENCY 



Norma Jean Purkett v. Crime Victims Compensation Comm. 
Sheila Carter v. Crime Control and Public Safety 
John Willie Leach v. Crime Victims Compensation Comm. 
Nellie R. Mangum v. Crime Victims Compensation Comm. 
Constance Brown v. Crime Victims Compensation Comm. 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


93 CPS 0205 


West 


08/27/93 


8:12 NCR 1171 


93 CPS 0249 


Morgan 


08/25/93 




93 CPS 0263 


Morrison 


05/20/93 




93 CPS 0303 


Morrison 


06/08/93 




93 CPS 0351 


Reilly 


05/24/93 





ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 



Charles L. Wilson v. Environment, Health, &. Natural Resources 
J. Bruce Mulligan v. Environment, Health, & Natrual Resources 
Michael D. Barnes v. Onslow Cty Hlth & Environment and EHR 
William E. Finck v. Environment, Health, & Natural Resources 
Utley C. Stallings v. Environment, Health, & Natural Resources 
A.J. Ballard Jr., Tire & Oil Co., Inc. v. Env., Health, & Nat. Res. 
Safeway Removal, Inc. v. Environment, Health, & Natural Res. 
White Oak Chapter of the Izaak Walton League, Inc., and 

National Parks and Conservation Association, Inc. v. 

Division of Solid Waste Management, EHR and Haywood County 
Elizabeth City/Pasquotank Cty Mun Airport Auth v. EHNR 
Interstate Brands Corp & Donald Leffew v. Env., Health, & Nat. Res. 
Service Oil Company v. Environment, Health, & Natural Resources 
Interstate Brands Corp & Donald Leffew v. Env., Health, & Nat. Res. 
Residents of Camm & Shell v. Health Environmental - Septic Tank Div. 
City of Salisbury v. Environment, Health, & Natural Resources 
Willie M. Watford v. Hertford Gates District Health Department 
Standaid Speciality Contractors, Inc. v. EHNR 
Shawqi A. Jaber v. Environment, Health, & Natural Resources 
Angela Power, Albert Power v. Children's Special Health Svcs. 
Erby Lamar Grainger v. Environment, Health, & Natural Resources 
Mustafa E. Essa v. Environment, Health, &. Natural Resources 
Charlie Garfield McPherson Swine Farm v. Env., Health, & Nat. Res. 
Rosetta Brimage, Vanessa Pack v. Env. Health of Craven County 
R.L. Stowe Mills, Inc. v. Environment, Health, & Natural Resources 
O.C. Stafford/Larry Haney v. Montgomery Cty. Health Dept. 
Fred M. Grooms v. Environment, Health, &. Natural Resources 
Bobby Anderson v. Environment, Health, & Natural Resources 
Shell Bros. Dist., Inc. v. Environment, Health, & Natural Resources 
Fred C. Gosnell &. wife, Patricia T Gosnell v. Env., Health, & Nat. Res. 
Holding Bros., Inc. v. Environment, Health, & Natural Resources 
Hamilton Beach/Proctor-Silex, Inc. v. Environment, Health, & Natrl Res 



91 EHR 0664 


Morgan 


03/23/93 




91 EHR 0773 


West 


07/13/93 




91 EHR 0825 


Morgan 


06/21/93 




92 EHR 0040 


Gray 


06/14/93 




92 EHR 0062 


Gray 


03/15/93 




92 EHR 0754 


Nesnow 


08/30/93 




92 EHR 0826 


West 


03/12/93 


8:1 NCR 83 


92 EHR 0881 


West 


09/14/93 




92 EHR 1140 


Gray 


04/13/93 




92 EHR 1201*" 


Reilly 


08/12/93 




92 EHR 1205 


Reilly 


05/27/93 




92 EHR 1224*" 


Reilly 


08/12/93 




92 EHR 1462 


Morrison 


08/25/93 




92 EHR 1472 


Morrison 


04/22/93 




92 EHR 1600 


Chess 


03/24/93 




92 EHR 1660 


Reilly 


05/21/93 




92 EHR 1784 


Bee ton 


07/07/93 




93 EHR 0008 


Beaton 


03/24/93 




93 EHR 0071 


Reilly 


06/21/93 




93 EHR 0146 


Gray 


03/29/93 




93 EHR 0181 


Reilly 


07/23/93 


8:10 NCR 870 


93 EHR 0206 


Nesnow 


05/20/93 




93 EHR 0219 


Morrison 


08/11/93 


8:11 NCR 996 


93 EHR 0224 


Gray 


06/07/93 




93 EHR 0276 


West 


08/27/93 


8:12 NCR 1176 


93 EHR 0299 


Reilly 


06/07/93 




93 EHR 0308 


Beaton 


05/18/93 




93 EHR 0340 


Bee ton 


08/11/93 




93 EHR 0380 


Nesnow 


08/03/93 


8:11 NCR 1001 


93 EHR 0477 


Reilly 


06/29/93 





HUMAN RELATIONS COMMISSION 



Human Relations Comm. on behalf of Tyrone Clark v. Myrtle Wilson 
Human Relations Comm. on behalf of Marsha Crisco v. Hayden Morrison 



92 HRC 0560 


Bee ton 


09/07/93 


8:13 NCR 1287 


93 HRC 0167 


Reilly 


08/18/93 


8:12 NCR 1168 



HUMAN RESOURCES 



O.C. Williams v. Human Resources 

Ronald Terry Brown v. Human Resources 

Dennis K. King v. Human Resources 

Cathy Harris, A/K/A Cathy D. Grubb v. Human Resources 

Raymond L. Griffin v. Human Resources 

O.C. Williams v. Human Resources 

Michael L. Ray v. Human Resources 

Randy Chambliss v. Human Resources 

Melvin White v. Human Resources 

Joseph R. Kavaliauskas Jr. v. Human Resources 

Larry D. Boyd v. Human Resources 

Jefferson D. Boylen v. Human Resources 

Jeffery D. Williams v. Human Resources 

Jerry L. Summers v. Human Resources 

Samuel E. Massenberg Jr. v. Human Resources 

William A. Dixon v. Human Resources 



91 CSE 
91 CSE 
91 CSE 
91 CSE 
91 CSE 
91 CSE 
91 CSE 
91 CSE 
91 CSE 
91 CSE 
91 CSE 
91 CSE 
91 CSE 
91 CSE 
91 CSE 
91 CSE 



0036* 2 

0249 

1122 

1131 

1148 

1158* 2 

1173 

1187 

1192 

1204 

1214 

1217 

1231 

1234 

1249 

1277 



Morgan 
Morgan 
Morgan 
Morgan 
Morgan 
Morgan 
Morgan 
Morgan 
Morgan 
Morgan 
Morgan 
Morgan 
Morgan 
Morgan 
Morgan 
Morrison 



03/30/93 
05/17/93 
07/28/93 
08/24/93 
08/24/93 
03/30/93 
05/17/93 
04/28/93 
05/17/93 
07/29/93 
08/24/93 
05/17/93 
04/28/93 
07/28/93 
05/17/93 
03/04/93 



Consolidated cases. 



8:13 



NORTH CAROLINA REGISTER 



October 1, 1993 



1275 



CONTESTED CASE DECISIONS 



ACKNCY 



Gregory L. Washington v. Human Resources 

Edwin Clarke v. Human Resources 

Dwayne Allen v. Human Resources 

Edwin Ivester v. Human Resources 

Connie F. Epps, Otis Junior Epps v. Human Resources 

Tyrone Aiken v. Human Resources 

Everett M. Eaton v. Human Resources 

Edward E. Brandon v. Human Resources 

Darrell W. Russell v. Human Resources 

John Henry By id v. Human Resources 

Michelle D. Mobley v. Human Resources 

Gus W. Long Jr. v. Human Resources 

Robert E. Watson v. Human Resources 

Byron Christopher Williams v. Human Resources 

James W. Bell v. Human Resources 

Charles W. Stall Jr. v. Human Resources 

Eric Stanley Stokes v. Human Resources 

Clayton L. Littleton v. Human Resources 

Frank E. Johnson v. Human Resources 

David Rollins v. Human Resources 

Willie Sam Brown v. Human Resources 

Lyndell Greene v. Human Resources 

Charles Swann v. Human Resources 

Michael Anthony Dean v. Human Resources 

Leroy Snuggs v. Human Resources 

James P. Miller HI v. Human Resources 

Herbert H. Fordham v. Human Resources 

Jack Dulq v. Human Resources 

Larry L. Crowder v. Human Resources 

Carlos Bernard Davis v. Human Resources 

Ocie C. Williams v. Human Resources 

Terrance Freeman v. Human Resources 

Floyd Excell Stafford v. Human Resources 

Timothy Brian Eller v. Human Resources 

Charles S. Ferrer v. Human Resources 

Ronald H. Lockley v. Human Resources 

Rene Thomas Rittenhouse v. Human Resources 

Thomas Edward Williamson v. Human Resources 

Roy Chester Robinson v. Human Resources 

Lynwood McClinton v. Human Resources 

Timothy Scott Long v. Human Resources 

David W Williams v. Human Resources 

William E. Ingram v. Human Resources 

Harold R. Pledger v. Human Resources 

Carl Beard v. Human Resources 

Henry Alston Jr. V. Human Resources 

Michael W. Bentley v, Human Resources 

Dale Robert Stuhre v. Human Resources 

James T, Carter Jr. V, Human Resources 

Tommy Malone v. Human Resources 

James C. Dixon Jr. v. Human Resources 

Timothy R. Currence v. Human Resources 

Wallace M. Cooper v. Human Resources 

Jarvis N. Price v. Human Resources 

Thomas L. Yates v. Human Resources 

Robert E. Tarlton Sr. v. Human Resources 

Rodney Devard Clemons v. Human Resources 

James A. Coleman v. Human Resources 

Lee Richard Jones v. Human Resources 

Romeo F. Skapple v. Human Resources 

Jeffrey L. Garrett v. Human Resources 

Edward Kirk v. Human Resources 

William C. Hubbard v. Human Resources 

William Michael Przybysz v. Human Resources 

Edward Fitch V. Human Resources 

David Robinett v. Human Resources 

Kit C. Elmore v. Human Resources 

Brian C. Gilmore v. Human Resources 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


92 CSE 0075 


Morgan 


04/01/93 


92 CSE 0129 


Morgan 


05/17/93 


92 CSE 0196 


Morgan 


03/31/93 


92 CSE 0268 


Nesnow 


03/30/93 


92 CSE 


1182 


Reilly 


07/22/93 


92 CSE 


1217 


Gray 


06/17/93 


92 CSE 1221 


Reilly 


07/27/93 


92 CSE 


1237 


Gray 


04/16/93 


92 CSE 


1249 


Bee ton 


04/20/93 


92 CSE 


1250 


Reilly 


06/04/93 


92 CSE 


1256 


Nesnow 


04/15/93 


92 CSE 


1263 


Gray 


08/16/93 


92 CSE 


1265 


Reilly 


05/06/93 


92 CSE 


1270 


Nesnow 


04/26/93 


92 CSE 


1311 


Nesnow 


05/10/93 


92 CSE 1313 


Mann 


07/06/93 


92 CSE 


1316* 3 


Reilly 


03/25/93 


92 CSE 1317 


Morrison 


09/02/93 


92 CSE 


1326 


Reilly 


08/16/93 


92 CSE 


1334 


Morrison 


05/06/93 


92 CSE 


1338 


Morrison 


09/15/93 


92 CSE 


1346 


Nesnow 


04/16/93 


92 CSE 


1347 


West 


09/16/93 


92 CSE 


1356 


Morrison 


08/13/93 


92 CSE 1360 


Morrison 


04/15/93 


92 CSE 1361 


Gray 


04/16/93 


92 CSE 1362 


Nesnow 


07/19/93 


92 CSE 


1374 


Gray 


07/16/93 


92 CSE 1396 


Reilly 


04/15/93 


92 CSE 


1404 


Reilly 


04/15/93 


92 CSE 


1405 


Mann 


06/25/93 


92 CSE 1411 


Mann 


06/07/93 


92 CSE 1412 


Reilly 


08/31/93 


92 CSE 


1414 


Reilly 


04/20/93 


92 CSE 1416 


Mann 


04/15/93 


92 CSE 1418 


Nesnow 


04/20/93 


92 CSE 


1421 


Nesnow 


04/20/93 


92 CSE 


1422 


Reilly 


04/20/93 


92 CSE 


1423 


Reilly 


04/15/93 


92 CSE 1424 


Reilly 


09/15/93 


92 CSE 


1445 


Bee ton 


06/29/93 


92 CSE 


1448 


Nesnow 


07/19/93 


92 CSE 


1450 


Reilly 


04/15/93 


92 CSE 


1455 


Morrison 


05/20/93 


92 CSE 


1459 


Reilly 


09/08/93 


92 CSE 


1460 


Bee ton 


06/29/93 


92 CSE 


1512 


Nesnow 


06/09/93 


92 CSE 


1516 


Reilly 


05/11/93 


92 CSE 


1517 


Mann 


08/31/93 


92 CSE 


1520 


Mann 


05/07/93 


92 CSE 


1522 


Bee ton 


05/11/93 


92 CSE 


1523 


Reilly 


09/09/93 


92 CSE 


1527 


Reilly 


05/11/93 


92 CSE 


1531 


Morrison 


05/12/93 


92 CSE 


1535 


Gray 


05/10/93 


92 CSE 


1536 


Gray 


05/17/93 


92 CSE 


1539 


Gray 


05/10/93 


92 CSE 


1540 


Reilly 


05/11/93 


92 CSE 


1541 


Reilly 


09/08/93 


92 CSE 


1545 


Gray 


04/26/93 


92 CSE 


1557 


Gray 


04/22/93 


92 CSE 


1560 


Gray 


06/29/93 


92 CSE 


1562 


Mann 


05/12/93 


92 CSE 1565 


Bee ton 


07/23/93 


92 CSE 


1572 


Reilly 


05/11/93 


92 CSE 1573 


Mann 


07/14/93 


92 CSE 


1575 


Gray 


07/16/93 


92 CSE 1576 


Gray 


04/26/93 



PUBLISHED DECISION 
REGISTER CITATION 



1276 



8:13 



NORTH CAROLINA REGISTER 



October 1, 1993 



CONTESTED CASE DECISIONS 



AGENCY 



Philip S. Piercy v. Human Resources 

Anthony McLaughlin v. Human Resources 

Johnny W. Cooke v. Human Resources 

Roland L. Essaff v. Human Resources 

Isaac Maxwell v. Human Resources 

Donald J. Ray v. Human Resources 

Charles Wayne Pierce v. Human Resources 

Donna G. Knotts v. Human Resources 

Donald R. Williams v. Human Resources 

McKinley Clyburn v. Human Resources 

Henry L. Taylor v. Human Resources 

Tony Thorpe v. Human Resources 

Jeffery D. Williams v. Human Resources 

Ronald Sowell v. Human Resources 

Billy Smith v. Human Resources 

Anthony Curry v. Human Resources 

John G. Williams v. Human Resources 

Larry W. Golden v. Human Resources 

William J. Carter v. Human Resources 

Mark W Dean v. Human Resources 

Tyrone Thomas v. Human Resources 

Rilton E. May v. Human Resources 

Joe K. Martin v. Human Resources 

Eric Stanley Stokes v. Human Resources 

Larry Thompson v. Human Resources 

Billie J. Smith v. Human Resources 

Patrick Floyd v. Human Resources 

Dennis W. Nolan v. Human Resources 

Eric L. Garland v. Human Resources 

Ira Alston Jr. v. Human Resources 

Elvis Bernard Telfair v. Human Resources 

Ronald G. Bolden v. Human Resources 

Marvin Holley v. Human Resources 

Eddie Short v. Human Resources 

Michael Tywan Marsh v. Human Resources 

Leroy Jones v. Human Resources 

Antonio M. Townsend v. Human Resources 

Kevin J. Close v. Human Resources 

Joseph Eric Lewis v. Human Resources 

Ronald Dean Lowery v. Human Resources 

Tamera S. Hatfield v. Human Resources 

James E. Blakney v. Human Resources 

Oswinn Blue v. Human Resources 

Kelvin D. Jackson v. Human Resources 

Linwood Staton v. Human Resources 

Anthony Watson v. Human Resources 

Eugene Polk v. Human Resources 

Barbara W. Catlett v. Human Resources 

Laurel Langford v. Human Resources 

Ida Diane Davis v. Human Resources 

Hatsuko Klein v. Human Resources 

Karen Mullins Martin v. Human Resources 

Ora Lee Brinkley v. David T. Flaherty, Secretary of Human Resources 

Mary McDuffie v. Human Resources Child Development 

Leon Barbee v. Human Resources 

Carrolton of Dunn, Inc. v. Human Resources 

Dialysis Care of North Carolina, Inc., d/b/a Dialysis Care of 
Cumberland County v. Human Resources, Division of Facility 
Services, Certificate of Need Section, and Bio-Medical 
Applications of Fayetteville d/b/a Fayetteville Kidney Center, 
Webb-Lohavichan-Melton Rentals, Bio-Medical Applications 
of North Carolina, Inc., d/b/a BMA of Raeford and Webb- 
Loha/ichan Rentals 

Dialysis Care of North Carolina, Inc., d/b/a Dialysis Care of 
Cumberland County v. Human Resources, Division of Facility 
Services, Certificate of Need Section, and Bio-Medical 
Applications of Fayetteville d/b/a Fayetteville Kidney Center, 
Webb-Lohavichan-Melton Rentals, Bio-Medical Applications 



CASE 




DATE OF PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION REGISTER CITATION 


92 CSE 1577 


Gray 


07/16/93 


92 CSE 1582 


Gray 


06/29/93 


92 CSE 1585 


Bee ton 


05/11/93 


92 CSE 1588 


Morrison 


07/26/93 


92 CSE 1589 


Reilly 


04/26/93 


92 CSE 1592 


Mann 


05/19/93 


92 CSE 1596 


Morrison 


07/14/93 


92 CSE 1611 


Morrison 


07/16/93 


92 CSE 1622 


Nesnow 


08/04/93 


92 CSE 1623 


Morrison 


05/20/93 


92 CSE 1624 


Mann 


09/15/93 


92 CSE 1625 


Chess 


07/15/93 


92 CSE 1626 


Mann 


05/19/93 


92 CSE 1627 


Reilly 


07/19/93 


92 CSE 1629 


Reilly 


03/25/93 


92 CSE 1631 


Reilly 


03/25/93 


92 CSE 1632 


Mann 


08/10/93 


92 CSE 1633 


Reilly 


03/25/93 


92 CSE 1637 


Nesnow 


05/19/93 


92 CSE 1638 


Reilly 


07/15/93 


92 CSE 1640 


Mann 


07/22/93 


92 CSE 1642 


Morgan 


07/29/93 


92 CSE 1650 


Reilly 


09/10/93 


92 CSE 1652* 3 


Reilly 


03/25/93 


92 CSE 1655 


Reilly 


07/22/93 


92 CSE 1656 


Gray 


07/23/93 


92 CSE 1663 


Reilly 


05/20/93 


92 CSE 1670 


Morrison 


06/25/93 


92 CSE 1671 


Mann 


07/22/93 


92 CSE 1703 


Bee ton 


06/16/93 


92 CSE 1704 


Reilly 


09/15/93 


92 CSE 1706 


Mann 


06/25/93 


92 CSE 1713 


Mann 


06/08/93 


92 CSE 1714 


West 


07/15/93 


92 CSE 1716 


Gray 


06/17/93 


92 CSE 1718 


Gray 


06/17/93 


92 CSE 1721 


Chess 


08/30/93 


92 CSE 1727 


Chess 


08/30/93 


92 CSE 1748 


Bee ton 


08/02/93 


92 CSE 1771 


West 


07/15/93 


92 CSE 1772 


Chess 


08/30/93 


92 CSE 1779 


Nesnow 


05/13/93 


93 CSE 0073 


Chess 


08/03/93 


93 CSE 0221 


West 


08/04/93 


93 CSE 0250 


Nesnow 


08/13/93 


93 CSE 0396 


Nesnow 


08/04/93 


93 CSE 0437 


Chess 


08/11/93 


92 DCS 0577 


West 


03/15/93 


92 DCS 1181 


Gray 


05/04/93 8:5 NCR 441 


92 DCS 1200 


Gray 


03/29/93 


92 DCS 1271 


Reilly 


05/05/93 


92 DCS 1783 


West 


08/04/93 


92 DHR 0608 


Chess 


08/27/93 


93 DHR 0651 


Bee ton 


09/10/93 


92 DHR 0658 


Morrison 


04/30/93 8:4 NCR 392 


92 DHR 1101 


Morgan 


07/26/93 


92 DHR 1109** 


Morgan 


06/22/93 8:8 NCR 687 



92 DHR 1 HO* 6 Morgan 06/22/93 



8:8 NCR 687 



8:13 



NORTH CAROLINA REGISTER 



October 1, 1993 



1277 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



of North Carolina, Inc., d/b/a BMA of Raeford and Webb- 
Lohavichan Rentals 

Bio-Medical Applications of North Carolina, Inc., d/b/a BMA 
of Raeford, Webb-Lohavichan-Melton Rentals, Bio-Medical 
Applications of North Carolina, Inc., d/b/a BMA of Fayetteville 
d/b/a Fayetteville Kidney Center and Webb-Lohavichan Rentals 
v. Human Resources, Division of Facility Services, Certificate of 
Need Section and Dialysis Care of North Carolina, Inc., d/b/a 
Dialysis Care of Hoke County 

Renal Care of Rocky Mount, Inc. v. Human Resources, Division of 
Facility Services, Certificate of Need Section, and Bio-Medical 
Applications of North Carolina, Inc., d/b/a BMA of Tarboro, 
Rocky Mount Nephrology Associates, Inc., Bio-Medical 
Applications of North Carolina, Inc., d/b/a BMA of Rocky Mount 
d/b/a Rocky Mount Kidney Center, and Rocky Mount Kidney Center 
Associates 

James H. Hunt Jr. v. Division of Medical Assistance 

Barbara Jones v. Human Resources 

Joyce P. Williams v. Human Resources 

Snoopy Day Care. Diane Hamby v. Child Day Care Licensing 

Cynthia Reed v. Human Resources 

The Neighborhood Center v. Human Resources 

Helm's Rest Home, Ron J. Sc hi mpf /Edith H. Wilson v. Human Resources 

Jo Ann Kinsey v. NC Memorial Hospital Betty Hutton, Volunteer Svc. 

Amy Clara Williamson v. NC Mem Hosp Betty Hutton, Volunteer Svc. 

Betty Butler v. Human Resources 

Wayne Sanders and Brenda Sanders v. Human Resources 

Samuel Benson v. Office of Admin. Hearings for Medicaid 

Cabarrus Cty Dept. of Social Svcs. v. Human Resources 

Hannah F. Tonkel v. Human Resources 

Fannie Lewis v. Human Resources 

Human Resources, Div. of Child Development v. Susan Amato 

Katie Kelly v. Human Resources 

Sandra Gail Wilson v. Child Abuse /Neglect, Div. of Child Development 



92 DHR 1116* Morgan 06/22/93 



92 DHR 1120 Gray 



06/18/93 



8:8 NCR 687 



8:8 NCR 687 



92 DHR 


1145 


Bee ton 


05/13/93 


8:5 


NCR 443 


92 DHR 


1192 


Nesnow 


04/02/93 


8:3 


NCR 313 


92 DHR 


1275 


Gray 


03/15/93 






92 DHR 


1320 


Morgan 


05/21/93 






92 DHR 


1329 


Chess 


05/10/93 






92 DHR 


1375 


Chess 


08/02/93 






92 DHR 


1604 


Reilly 


05/10/93 






92 DHR 


1612 


Chess 


03/08/93 






92 DHR 


1613 


Chess 


03/08/93 






92 DHR 


1614 


Chess 


03/09/93 






92 DHR 


1699 


Reilly 


06/07/93 


8:7 


NCR 632 


93 DHR 0010 


Bee ton 


03/11/93 






93 DHR 0373 


Morgan 


07/20/93 






93 DHR 0378 


Nesnow 


09/10/93 






93 DHR 0379 


Gray 


06/28/93 






93 DHR 0418 


Morgan 


08/26/93 






93 DHR 0441 


Chess 


07/26/93 






93 DHR 0782 


Nesnow 


09/09/93 







INSURANCE 



Carolyn M. Hair v. St Employees Comprehensive Major Medical 
Scotland Memorial Hospital, Mary Home Odom v. Bd. /Trustees// 
St. of N.C. Teachers' & St. Emp. Comp. Major Medical Plan, and 
David G. Devries, as Exec. Admin, of the N.C. Teachers' & St. Emp. 
Comp. Major Medical Plan 
Phyllis C. Harris v. Teachers* & St. Emp. Comp. Major Med. Plan 



92 INS 1464 
92 INS 1791 



93 INS 0197 



Chess 
Reilly 



Nesnow 



03/10/93 
08/19/93 



07/29/93 



JUSTICE 



Philip B. Cates v. Justice, Attorney General's Office 

Jennings Michael Bostic v. Sheriffs* Ed. &. Traning Stds. Comm. 

Colin Carlisle Mayers v. Sheriffs' Ed. & Training Stds. Comm. 

Jennings Michael Bostic v. Sheriffs* Ed. & Traning Stds. Comm. 

Michael Charles Kershner v. Criminal Justice Ed & Training Stds Comm 

George Wilton Hawkins v. Criminal Justice Ed. &. Training Stds. Comm. 

Marilyn Jean Britt v. Criminal Justice Ed. & Training Stds. Comm. 

Tim McCoy Deck v. Criminal Justice Ed. & Training Stds. Comm. 

Richard Zander Frink v. Criminal Justice Ed. & Traning Stds. Comm. 

Sherri Ferguson Revis v. Sheriffs* Ed. & Training Stds. Comm. 

Mark Thomas v. Sheriffs' Ed. & Training Standards Commission 

George Wilton Hawkins v. Sheriffs' Ed. & Training Stds. Comm. 

Lonnie Allen Fox v. Sheriffs' Ed. & Training Standards Commission 

Alarm Systems Licensing Bd. v. Eric Hoover 

Alarm Systems Licensing Bd. v. Vivian Darlene Gaither 

Rebecca W. Stevenson v. Criminal Justice Ed. &. Training Stds. Comm. 

Lloyd Harrison Bryant Jr. v. Criminal Justice Ed & Training Stds Comm 

William B. Lipscomb v. Private Protective Services Board 

Private Protective Svcs. Bd. V. Fred D. Rector 

Private Protective Svcs. Bd. v. Alan D. Simpson 

Carl Michael O'Byrne v. Alarm Systems Licensing Board 



90 DOJ 0353 


Morgan 


08/30/93 


8:13 NCR 1281 


92 DOJ 0656* 7 


West 


06/22/93 




92 DOJ 0761 


Morrison 


05/10/93 




92 DOJ 0829* 7 


West 


06/22/93 




92 DOJ 0869 


Morgan 


08/11/93 




92 DOJ 1081*' 


Morgan 


07/09/93 




92 DOJ 1088 


Morrison 


03/16/93 




92 DOJ 1367 


Chess 


04/01/93 




92 DOJ 1465 


Nesnow 


05/28/93 




92 DOJ 1756 


Gray 


03/23/93 




93 DOJ 0151 


West 


04/21/93 




93 DOJ 0156*' 


Morgan 


07/09/93 




93 DOJ 0196 


Morrison 


08/09/93 




93 DOJ 0201 


Bee ton 


07/12/93 




93 DOJ 0202 


Chess 


05/10/93 




93 DOJ 0357 


Morrison 


09/13/93 




93 DOJ 0377 


Reilly 


08/31/93 




93 DOJ 0458 


Morrison 


06/01/93 




93 DOJ 0479 


Mann 


08/19/93 




93 DOJ 0480 


West 


07/21/93 




93 DOJ 0844 


Nesnow 


09/08/93 


8:13 NCR 1300 



1278 



8:13 



NORTH CAROLINA REGISTER 



October 1, 1993 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



Al „) 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



LABOR 

Greensboro Golf Center, Inc. v. Labor 
Ronald Dennis Hunt v. Labor 
Jeffrey M. McKinney v. Labor 

MORTUARY SCD2NCE 



92 DOL 0204 
92 DOL 1319 
92 DOL 1333 



Nesnow 04/15/93 
Morgan 06/17/93 

Morrison 06/21/93 



Board of Mortuary Science v. Triangle Funeral Chapel, Inc. 
PUBLIC INSTRUCTION 



92 BMS 1 169 Reilly 



04/29/93 



8:4 NCR 396 



88 OSP 0340 Morrison 

90 OSP 1064* 1 Mann 

90 OSP 1065** Mann 

90 OSP 1066* 1 Mann 

90 OSP 1067* 1 Mann 

90 OSP 1068* 1 Mann 



Frances F. Davis, Parent of Joseph E. Davis v. Public Instruction 93 EDC 0628 Mann 

Donna Marie Snyder v. Public Instruction 93 EDC 0731 Nesnow 

STATE PERSONNEL 

Frances K. Pate v. Transportation 

Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart, 

James H. Johnson, James D. Fishel v. Justice 
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart, 

James H. Johnson, James D. Fishel v. Justice 
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart, 

James H. Johnson, James D. Fishel v. Justice 
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart, 

James H. Johnson, James D. Fishel v. Justice 
Lawrence D. Wilkie, Jerry R. Evans, Jules R. Hancart, 

James H. Johnson, James D. Fishel v. Justice 

BernieB. Kellly v. Correction 91 OSP 0344 Morrison 

Brenda G. Mitchell v. Correction 91 OSP 0625 West 

Adolph Alexander Justice Jr. v. Motor Vehicles, Transportation 91 OSP 0860 Chess 

Clayton Brewer v. North Carolina State University 91 OSP 0941 West 

Sherman Daye v. Transportation 91 OSP 0951 West 

Donnie M. White v. Correction 91 OSP 1236 Morgan 

Gregory Samuel Parker v. Environment, Health, & Natural Resources 91 OSP 1344* 5 Chess 

Renee E. Shepherd v. Winston-Salem State University 91 OSP 1391 Morgan 

Eva Dockery v. Human Resources 92 OSP 0010 Chess 

Lee P. Crosby v. Michael Kelly, William Meyer and EHR 92 OSP 0056 Gray 

William Marshall Boyd Jr. v. County Commissioners of Hyde &. 92 OSP 0090 Gray 

Certain Board of Health Members 

Gregory Samuel Parker v. Environment, Health, & Natural Resources 92 OSP 0188* 5 Chess 

Wrllie Granville Bailey v.Winston-Salem State University 92 OSP 0285 Morrison 

Mattie W. Smith v. State Agricultural and Technical University 92 OSP 0298* 12 Reilly 

Julia Spinks v. Environment, Health, &. Natural Resources 92 OSP 0313 Becton 

James B. Price v. Transportation 92 OSP 0375 Gray 

I. Cary Nailling v. UNC-CH 92 OSP 0394 Becton 

Deborah Barber v. Correction 92 OSP 0396 Chess 

Laverne B. Hill v. Transportation 92 OSP 0431* 1 West 

Jimmy D. Wilkins v. Transportation 92 OSP 0432* 1 West 

Sarah W Britt v. Human Resources, C.A. Dillon School, CPS 92 OSP 0455 West 

Charles Robinson v. Revenue 92 OSP 0553 Morgan 

Anna L. Spencer v. Mecklenburg County Area Mental Health 92 OSP 0584 Becton 

Herman James Goldstein v. UNC-Chapel Hill et al. 92 OSP 0634 Morrison 

Glinda C. Smith v. Wildlife Resources Commission 92 OSP 0653 Morrison 

Cindy G. Bartlett v. Correction 92 OSP 0671 Morgan 

William Kenneth Smith Jr. v. Broughton Hospital (Human Resources) 92 OSP 0684 Becton 

Larry O. Nobles v. Human Resources 92 OSP 0732 Mann 

Beatrice Wheless v. Lise M. Miller, University Payroll Off., NC St. Univ. 92 OSP 0744* 10 Morgan 

Sondra Williams v. Winston-Salem State University 92 OSP 0847 Morrison 

Willie Thomas Hope v. Transportation 92 OSP 0947 Morgan 

David Scales v. Correction 92 OSP 0989 Chess 

Suzanne Ransley Hill v. Environment, Health, &. Nat. Res. 92 OSP 0992 Reilly 

Herman James Goldstein v. UNC-Chapel Hill et al. 92 OSP 1047 Morrison 

Beatrice Wheless v. Lise M. Miller, University Payroll Off., NC St. Univ. 92 OSP 1124* 10 Morgan 

John B. Sauls v. Wake County Health Department 92 OSP 1142 Reilly 

Nancy McAllister v. Camden County Department of Social Services 92 OSP 1 185 Chess 

Gilbert Jaeger v. Wake County Alcoholism Treatment Center 92 OSP 1204 Reilly 

Joseph Henry Bishop v. Environment, Health, & Natural Res. 92 OSP 1243 Reilly 



07/29/93 
09/16/93 



05/03/93 
05/04/93 

05/04/93 

05/04/93 

05/04/93 

05/04/93 

05/27/93 
03/08/93 
07/19/93 
04/02/93 
05/07/93 
04/05/93 
05/20/93 
04/28/93 
05/03/93 
06/07/93 
08/25/93 

05/20/93 
03/10/93 
09/14/93 
04/12/93 
04/13/93 
04/20/93 
03/04/93 
03/08/93 
03/08/93 
05/26/93 
07/21/93 
08/16/93 
05/04/93 
03/12/93 
06/08/93 
05/10/93 
04/23/93 
07/16/93 
08/06/93 
03/23/93 
06/24/93 
03/18/93 
05/04/93 
07/16/93 
03/08/93 
09/07/93 
05/10/93 
03/05/93 



8:1 NCR 75 
8:3 NCR 306 



8:4 NCR 382 



8:6 NCR 484 



8:2 NCR 224 



8:1 NCR: 



8:13 



NORTH CAROLINA REGISTER 



October 1, 1993 



1279 



CONTESTED CASE DECISIONS 



AGENCY 



Glenn D. Fuqua v. Rockingham County Board of Social Services 

Willie L. Hudson v. Correction 

Brenda K. Campbell v. Employment Security Commission 

Christie L. Guthrie v. Environment, Health, & Natural Resources 

Sharon Reavis v. Crime Control & Public Safety 

James B. Price v. Transportation 

Jerry L. Jones v. N.C.S.U Physical Plant 

Mattie W. Smith v. State Agricultural and Technical University 

Roland W. Holden v. University of North Carolina at Chapel Hill 

Betty Bradsher v. UNC-CH 

Anthony M. Little v. Human Resources, John Umstead Hospital 

Jamal Al Bakkat-Morris v. Glenn Sexton (DSS) 

Brenda Kay Barnes v. Human Resources 

Larry G. Riddle v. Correction, Division of Prisons 

Stevie E. Dunn v. PdUc Youth Center 

Buford D. Vieregge Jr. v. N.C. State University, University Dining 

Brenda B. Miles v. University of North Carolina Chapel Hill 

Karen Canter v. Appalachian State University 

Terry Steve Brown v. Iredell County Health Department 

Barbara A. Johnson v. Human Resources 

Carrie P. Smith v. County of Stanly 

George W. Allen v. Human Resources, Correction, Agri & EHNR 

William G. Fisher v. St Bd of Ed, Albermarle City Schools & Bd of Ed 

Grace Jean Washington v. Caswell Center 

Clifton E. Simmons v. Correction 

Willie L. James v. Caswell Center 

Irving S. Rodgers v. C.A. Dillon, Division of Youth Services 

Richard E. Howell v. Correction, Wayne Correctional Center 

Brian Dale Barahardt v. State Highway Patrol 

F.R. "Don" Bowen v. Human Resources 

Michael L. Pegram v. Correction 

Jerry D. Doss Sr. v. Correction 

Debbie Renee Robinson v. Correction 

Michael L. Pegram v. Correction 

Hubert L. Holmes v. Transporation 

Xantippe Blackwell v. Human Resources, Murdoch Center 

Harold Kovolenko V. Lynn C. Phillips, Director of Prisons 

Daniel Thomas Wheeler, Kye Lee Wheeler v. Caldwell County 

Department of Social Services 
Dana Phillips v. Administrative Office of the Courte 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


92 OSP 1318 


Morrison 


08/03/93 


92 OSP 1468 


Bee Ion 


05/26/93 


92 OSP 1505 


Morrison 


03/17/93 


92 OSP 1555 


Bee ton 


05/31/93 


92 OSP 1606 


Morrison 


08/19/93 


92 OSP 1657 


Mann 


03/19/93 


92 OSP 1661 


Chess 


07/06/93 


92 OSP 1691* 12 


Reilly 


09/14/93 


92 OSP 1715 


Bee ton 


08/30/93 


92 OSP 1733 


Bee ton 


03/30/93 


92 OSP 1734 


Bee ton 


09/01/93 


92 OSP 1741 


Bee ton 


03/24/93 


92 OSP 1768 


Morrison 


03/17/93 


92 OSP 1774 


Gray 


04/26/93 


92 OSP 1789 


Bee ton 


04/19/93 


92 OSP 1796 


Morrison 


05/27/93 


93 OSP 0033 


Morrison 


09/10/93 


93 OSP 0079 


Reilly 


06/15/93 


93 OSP 0101 


Morgan 


08/06/93 


93 OSP 0103 


Morrison 


03/17/93 


93 OSP 0109 


Bee ton 


04/01/93 


93 OSP 0111 


Reilly 


04/16/93 


93 OSP 0134 


Bee ton 


04/20/93 


93 OSP 0153 


Morgan 


06/03/93 


93 OSP 0159 


Morrison 


04/21/93 


93 OSP 0171 


Morgan 


05/27/93 


93 OSP 0177 


West 


04/21/93 


93 OSP 0245 


Gray 


08/25/93 


93 OSP 0251 


Reilly 


07/27/93 


93 OSP 0253 


Morgan 


08/06/93 


93 OSP 0275** 


Reilly 


06/28/93 


93 OSP 0287 


Gray 


05/17/93 


93 OSP 0383 


Nesnow 


06/07/93 


93 OSP 0472** 


Reilly 


06/28/93 


93 OSP 0572 


Reilly 


08/17/93 


93 OSP 0632 


Reilly 


09/01/93 


93 OSP 0697 


Nesnow 


09/08/93 


93 OSP 0752 


Nesnow 


09/16/93 


93 OSP 0822 


West 


09/09/93 



PUBLISHED DECISION 
REGISTER CITATION 



8:12 NCR 1163 



8:13 NCR 1292 



STATE TREASURER 



Juanita M. Braxton v. Bd. of Trustees/Teachers' & St Emp Ret Sys 
Herman D. Brooks v. Bd of Trustees/Teachers' & St Emp Ret Sys 
Henrietta Sandlin v. Teachers* &. State Emp Comp Major Medical Plan 
Mary Alyce Carmichael v. Bd/Trustees/Teacheis' & St Emp Ret Sys 
W. Rex Perry v. BdATrustees /Teachers* & St Emp Ret Sys 



9! DST 0017 


West 


09/07/93 


91 DST 0566 


Gray 


04/13/93 


92 DST 0305 


Morgan 


04/12/93 


92 DST 1506 


Chess 


04/08/93 


93 DST 0133 


West 


08/12/93 



8:11 NCR 992 



TRANSPORTATION 



Yates Conslruetion Co. , Ine. v. Transportation 
UNIVERSITY OF NORTH CAROLINA HOSPITALS 



92 DOT 1800 Morgan 03/25/93 



Constanee V. Graham v. UNC Hospital 
Jacqueline Florence v. UNC Hospitals 



93 UNC 0269 
93 UNC 0355 



Morgan 
Bee ton 



07/20/93 
06/16/93 



1280 



8:13 



NORTH CAROLINA REGISTER 



October 1, 1993 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF DURHAM 



IN THE OFFICE OF 
ADMINISTRATIVE HEARINGS 
90 DOJ 0353 



PHILIP B. CATES 

Petitioner, 



v. 



N.C DEPARTMENT OF JUSTICE 
ATTORNEY GENERAL'S OFFICE 
Respondent 



RECOMMENDED DECISION: 
ENTRY OF SUMMARY 
JUDGMENT FOR PETITIONER 



The Petitioner filed a document titled "Petition for Administrative Review" on March 30, 1990, 
alleging that the Respondent erroneously determined that it would not provide legal defense for the Petitioner 
or authorize the Petitioner to obtain legal defense in a legal action which was initiated against the Petitioner's 
employer Durham County and the Petitioner, in his capacity as a Registered Sanitarian employed by the 
Environmental Health Division of the Durham County Health Department. On May 7, 1992 the Respondent's 
Motion for Summary Judgment was filed, in which the Respondent contended that there is no genuine issue 
as to any material fact and the Respondent is entitled to a judgment as a matter of law because the statutory 
provision which authorizes the Respondent to provide legal defense for local health department sanitarians was 
not in effect at the time of the Petitioner's actions in his employment which prompted the legal action against 
him and the Petitioner's actions in his employment were not within the scope and course of enforcing the rules 
of the state agency Commission for Health Services. The Petitioner filed the Petitioner's Response to 
Respondent's Motion for Summary Judgment and Petitioner's Cross-Motion for Summary Judgment on May 
20, 1992, asserting that his motion for summary judgment should be granted and the Respondent's motion for 
summary judgment should be denied because statutory law required the Respondent to defend the Petitioner 
since he was sued in court based upon his enforcement of the rules of the Commission for Health Services. 
On May 29, 1992 the Respondent's Response to Petitioner's Reply to Respondent's Motion for Summary 
Judgment was filed. 

ISSUE 

Whether the Respondent correctly determined that it should deny the Petitioner's request for legal 
representation by the Respondent in a legal action initiated against the Petitioner in his capacity as a local 
health department sanitarian. 

FINDINGS OF FACT 

Based upon the pleadings and affidavits of the contested case, the undersigned administrative law 
judge finds the following facts: 

1 . The Petitioner is employed as a Sanitarian with the Environmental Health Division of the Durham 
County Health Department in Durham, North Carolina. 

2. The Petitioner's work duties as a Sanitarian, after being supervised during his training period by a 
District Supervisor from the North Carolina Department of Environment, Health, and Natural 
Resources, included the performance of preliminary soil evaluations, the interpretation of sewage 
treatment and disposal system rules of the State of North Carolina and the issuance of improvement 



8:13 



NORTH CAROLINA REGISTER 



October 1, 1993 



1281 



CONTESTED CASE DECISIONS 



permits. 

3. A preliminary soils evaluation is the first step in the approval process for a septic tank system. 

4. In performing preliminary soil evaluations in 1986, sanitarians employed with the Durham County 
Health Department enforced the rules of the Commission for Health Services under the authorization 
and supervision of the North Carolina Department of Natural Resources and Community 
Development. 

5. In Durham County, an applicant for a preliminary soil evaluation had a right of appeal to the 
Durham County Soil Scientist in the event that the applicant was not satisfied with the results of the 
evaluation. 

6. In Durham County, an applicant for a preliminary soil evaluation could appeal the results of a 
preliminary soil evaluation from the Durham County Soil Scientist to the District and to the State 
of North Carolina Sanitarian. 

7. Richard K. Rowe is the Director of the Environmental Health Section of the North Carolina 
Department of Environment, Health, and Natural Resources.** 

8. Rowe does not recommend that North Carolina counties conduct preliminary soil evaluations for 
sites, due to a county health department's exposure to liability when it issues assurances of the 
approvability of a site for an improvement permit. 

9. Preliminary soil evaluations conducted by North Carolina counties are not a part of any program of 
the State of North Carolina concerning evaluations of subdivision property sites. 

10. The Petitioner performed a site and soil evaluation on July 17 and 18, 1986 for a ground absorption 
sewage disposal system upon the submission of an application for an improvement permit by H & 
W Developers, Incorporated. 

11. On July 13, 1989, H & W Developers, Incorporated initiated a legal action against Durham County 
and the Petitioner in Durham County Superior Court, alleging that H & W Developers, Incorporated 
relied on the Petitioner's evaluation map and report after he had conducted a preliminary soil 
evaluation to determine the suitability of proposed property lots for septic tank systems, that the 
Petitioner's evaluation map and report indicated that 49 of 50 proposed property lots were suitable 
for septic tank systems, that the Durham County Health Department determined that the Petitioner's 
preliminary soil evaluation was incorrect in that many of the property lots which the Petitioner had 
identified as suitable for septic tank systems were not suitable for them and that H & W Developers 
suffered monetary damages as a result of the Petitioner's negligence. 

12. In a letter dated October 17, 1989 and addressed to North Carolina Department of Human Resources 
Secretary David T. Flaherty. Carole S. Gailor of the law firm Womble, Carlyle, Sandridge and Rice 
requested that the Department of Human Resources forward the Petitioner's request to the North 
Carolina Attorney General's Office for legal representation from the Respondent in the legal action 
initiated on July 13, 1989. 

13. In a letter dated February 9, 1990 and addressed to Gailor, Assistant Attorney General Gayle M. 
Mathei stated that the legal action initiated on July 13, 1989 was not one in which representation of 
the Petitioner by the Respondent was appropriate, because the Petitioner's actions in his employment 
which were the subject of the legal complaint predated the statutory law which provided for the 



The North Carolina Department of Environment. Health, and Natural Resources was formerly the North Carolina Department of Natural 
Resources and Community Development. 



1282 8:13 NORTH CAROLINA REGISTER October 1, 1993 



CONTESTED CASE DECISIONS 



representation of local health department sanitarians by the Respondent and the Petitioner was not 
enforcing the rules of the Commission for Health Services when he was conducting preliminary soil 
evaluations. 

CONCLUSIONS OF LAW 

1. North Carolina General Statutes Section 130A-336(a) states, in pertinent part, that no person shall 
commence or assist in the construction, location or relocation of a residence, place of business or 
place of public assembly in an area not served by an approved wastewater system unless an 
improvement permit is obtained from the local health department. 

2. N.C.G.S. §130A-336(b) states, in pertinent part, that the local health department shall issue an 
improvement permit authorizing work to proceed and the installation of a wastewater system when 
it has determined after a filed investigation that the system can be installed and operated in 
compliance with Article 11 of Chapter 130A of the North Carolina General Statutes and rules 
adopted pursuant to this Article. 

3. Title 15A, Chapter 18A, Section .1937 (a) and (b) of the North Carolina Administrative Code states, 
in pertinent part, that an improvement permit shall be required in accordance with N.C.G.S. 130A- 
336, with the local health department issuing an improvement permit "only after it has determined 
that the system is designed and can be installed so as to meet the provisions of these Rules ". 
(EMPHASIS ADDED) 

4. 15A NCAC 18A .1939 states, in pertinent part, that the local health department " shall investigate 
each proposed site" for a sanitary sewage system and that the "[s]ite evaluations shall be made in 
accordance with Rules .1940 through .1948 of this Section [.1900 of the North Carolina 
Administrative Code]". (EMPHASIS ADDED) 

15A NCAC 18A .1937(i) states, in pertinent part, that "[t]he local health department shall prepare 
a written report with reference to the site and soil conditions required to be evaluated pursuant to 
this Section [.1900 of the North Carolina Administrative Code]" and "[t]he report shall be signed 
and dated by the local (authorized) sanitarian." 

6. In conducting preliminary soil evaluations of sites upon the application for an improvement permit 
by H & W Developers, Incorporated for a ground absorption sewage disposal system, pursuant to 
which the Petitioner issued a written report regarding the site and soil conditions which he signed 
and dated as the local authorized sanitarian determining for his employer Durham County Health 
Department that the property lots were suitable for septic tank systems after investigating each 
proposed site as mandated by rules of the North Carolina Administrative Code, the Petitioner was 
enforcing rules of the state agency Commission for Health Services. 

7. N.C.G.S. §143-300.8, titled "Defense of local sanitarians," states in pertinent part: 

"Any local health department sanitarian enforcing rules of the Commission for Health 
Services under the supervision of the Department of Environment, Health, and Natural 
Resources pursuant to G.S. 130A-4(b) shall be defended by the Attorney General subject to 
the provisions of G.S. 143-300.4, and shall be protected from liability in accordance with the 
provisions of this Article [31 A of Chapter 143 of the General Statutes] in any civil or 
criminal action or proceeding brought against the sanitarian in his official or individual 
capacity, or both, on account of an act done or omission made in the scope and course of 
enforcing the rules of the Commission for Health Services. The Department of Environ- 
ment, Health, and Natural Resources shall pay any judgment against the sanitarian, or any 
settlement made on his behalf. . . " 

8. N.C.G.S. §130A-4(b) states, in pertinent part: 



8:13 NORTH CAROLINA REGISTER October 1, 1993 1283 



CONTESTED CASE DECISIONS 



"When requested by the Secretary [of Environment, Health, and Natural Resources], a local 
health department shall enforce the rules of the Commission [for Health Services] under the 
supervision of the Department [of Environment, Health, and Natural Resources]. The local 
health department shall utilize local staff authorized by the Department to enforce the specific 
rules..." 

9. In EEE-ZZZ Lay Drain Company y^ North Carolina Department of Human Resources , 108 N.C. 
App. 24, 422 S.E.2d 338 (1992), the North Carolina Court of Appeals held that local health 
departments are agents of the State of North Carolina, opining: 

"...Under the statutory scheme in place for the regulation of sanitary sewage systems, the 
local health departments are invested with a great deal of authority. ..The rules promulgated 
pursuant to Chapter 130A, Article 11 of the General Statutes and found in Title 15A of the 
North Carolina Administrative Code specify with particularity the duties and powers of the 
local health departments as concerns sewage treatment and disposal systems. 

"After careful examination of the authority and duties imposed statutorily by the General 
Assembly upon the local health departments, we hold that they are agents of the State..." 
(108 N.C. App. at 28, 422 S.E.2d at 341) 

10. The Petitioner is a local health department sanitarian employed by the Durham County Health 
Department, an agency of the State of North Carolina under EEE-ZZZ Lay Drain Company, supra , 
who was enforcing rules of the state agency Commission for Health Services under the supervision 
of the Department of Environment, Health, and Natural Resources when the Petitioner allegedly 
acted or failed to act in the scope and course of enforcing the rules of the Commission when he 
performed the preliminary soil evaluations concerning which H & W Developers, Incorporated 
brought a civil action against the Petitioner in his official and individual capacity. 

1 1 N.C.G.S. §143-300. 4(a)(1) states that the State shall refuse to provide for the defense of a civil or 

criminal action or proceeding brought against an employee or former employee if the State 
determines that the act or omission was not within the scope and course of his employment as a State 
employee. 

12. While the Petitioner is not a State employee, the Petitioner served as an agent of the State, in his job 
capacity as a local health department sanitarian employed by the Durham County Health Department, 
when he acted or failed to act in the scope and course of his employment with the State agent 
Durham County Health Department when he performed the preliminary soil evaluations concerning 
which H & W Developers, Incorporated brought a civil action against the Petitioner. 

13. N.C.G.S. §143-300. 4(a)(4) states that the State shall refuse to provide for the defense of a civil or 
criminal action or proceeding brought against an employee or former employee if the State 
determines that defense of the action or proceeding would not be in the best interests of the State. 

14. The Respondent did not have sufficient grounds upon which to refuse to provide for the legal defense 
of the Petitioner in the civil action brought against him on the basis that defense of the action was 
not in the best interests of the State. 

15. The Respondent did not have sufficient grounds under N.C.G.S. §143-300. 4(a)(1) and (4) upon 
which to refuse to provide for the legal defense of the Petitioner in the civil action brought against 
him. 

16. N.C.G.S. §143-300.8, which establishes that the Attorney General shall defend any local health 
department sanitarian enforcing rules of the Commission for Health Services under the supervision 
of the Department of Environment, Health, and Natural Resources in any civil or criminal action or 
proceeding brought against the sanitarian in his official or individual capacity on account of an act 



1284 8:13 NORTH CAROLINA REGISTER October 1, 1993 



CONTESTED CASE DECISIONS 



done or omission made in the scope and course of enforcing the rules of the Commission for Health 
Services, became effective in 1987. 

17. The Petitioner's alleged acts and omissions concerning his performance of preliminary soil 
evaluations in his capacity as a Sanitarian, which were the subject of the legal action initiated against 
him by H & W Developers, Incorporated, occurred in 1986, prior to the effective date of N.C.G.S. 
§143-300.8. 

18. The legal action against the Petitioner based upon his alleged acts and omissions concerning his 
performance of preliminary soil evaluations in 1986 in his capacity as a Sanitarian was initiated by 
H & W Developers, Incorporated in 1989, after the effective date of N.C.G.S. §143-300.8. 

In applying the effective date of N.C.G.S. §143-300.8 to the sequence of events addressed in the 
statute, the focus is on the date that the action or proceeding is brought against the sanitarian rather 
than on the date that the acts were done or the omissions were made by the sanitarian, as evidenced 
by the subject of N.C.G.S. §143-300.8, " Defense of local sanitarians." (EMPHASIS ADDED) 

20. When the language of a statute is clear and unambiguous, it must be given effect and its clear 
meaning may not be evaded by an administrative body or a court under the guise of construction. 
State ex reL Utilities Commission v. Edmisten , 291 N.C. 451, 232 S.E.2d 184 (1977). 

21. The language of N.C.G.S. §143-300.8, which became effective in 1987, is clear and unambiguous 
that the Petitioner, a local health department sanitarian who was enforcing rules of the Commission 
for Health Services under the supervision of the Department of Environment, Health, and Natural 
Resources when he conducted a preliminary soil evaluation pursuant to a submitted application for 
an improvement permit, was to be defended by the Respondent and protected from liability in the 
civil action initiated against him in 1989 in his official and individual capacity on account of acts 
done or omissions made in the scope and course of enforcing the rules of the Commission for Health 
Services in his performance of the preliminary soil evaluations. 

22. N.C.G.S. §1A-1, Rule 56(c) establishes that summary judgment is appropriate if the pleadings, 
depositions, answers to interrogatories, and admissions on file in a case, together with any affidavits, 
show that there is no genuine issue as to any material fact and that any party is entitled to a judgment 
as a matter of law. 

23. There is no genuine issue as to any material fact and the Petitioner is entitled to a judgment as a 
matter of law, because the Respondent incorrectly determined that it should deny the Petitioner's 
request for legal representation by the Respondent in a legal action brought against the Petitioner in 
his capacity as a local health department sanitarian. 

RECOMMENDATION 

It is recommended that the Respondent provide legal representation to the Petitioner in the legal action 
initiated against him. In the event that this recommendation cannot be implemented due to the completion or 
cessation of proceedings in the legal action initiated against the Petitioner, then it is recommended that the 
Respondent reimburse the Petitioner for any costs of legal representation which were incurred by the Petitioner 
as a direct result of the Respondent's determination to deny the Petitioner's request for legal representation. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General Statute 
150B-36(b). 



8:13 NORTH CAROLINA REGISTER October 1, 1993 1285 



CONTESTED CASE DECISIONS 



NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings . 

The agency that will make the final decision in this contested case is the North Carolina Department 
of Justice. 

This the 30th day of August, 1993. 



Michael Rivers Morgan 
Administrative Law Judge 



1286 8:13 NORTH CAROLINA REGISTER October 1, 1993 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF GUILFORD 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

92 HRC 0560 



NORTH CAROLINA HUMAN RELATIONS 
COMMISSION 
on behalf of 
TYRONE CLARK, 
Petitioner, 



v. 



MYRTLE WILSON, 
Respondent. 



PROPOSAL FOR DECISION 



This matter was heard before Brenda B. Becton, Administrative Law Judge, on April 13, 1993, in 
High Point, North Carolina. At the conclusion of the hearing, the parties were afforded an opportunity to 
submit written post-hearing submissions. The record was closed on July 23, 1993. 

APPEARANCES 

Petitioner: Daniel D. Addison, Attorney, North Carolina Human Relations Commission, 

Raleigh, North Carolina. 

Respondent: HAWORTH, RIGGS, KUHN AND HAWORTH, Attorneys at Law, High Point, North 

Carolina; William B. Haworth appearing. 

ISSUES 

1 . Whether the Respondent refused to engage in a real estate transaction with the Complainant because 
of his race. 

2. Whether the Respondent made a statement indicating an intent to discriminate, because of race, with 
respect to a real estate transaction. 

3. Whether the Complainant is entitled to an award of compensatory damages, and if so, the amount of 
such damages. 

4. Whether to assess a civil penalty against the Respondent, and if so, the amount of such civil penalty. 

STATUTES INVOLVED 

N.C. Gen. Stat. §41A-4(a)(l) 

N.C. Gen. Stat. §41A-4(a)(6) 

N.C. Gen. Stat. §41A-7(1) 

FINDINGS OF FACT 

From official documents in the file, sworn testimony of the witnesses, and other competent and 
admissible evidence, it is found as a fact that: 



8:13 



NORTH CAROLINA REGISTER 



October 1, 1993 



1287 



CONTESTED CASE DECISIONS 



1 . Prior to and during the incidents of this case, the Respondent, Myrtle Wilson, owned and managed 
the rental of two houses, at 2001 and 2004 Rotary Drive, High Point (Guilford County), North 
Carolina. 

2. In February, 1991, the Respondent's rental house at 2001 Rotary Drive was vacant. 

3. On February 5, 1991, the Respondent advertised the house for rent in the High Point Enterprise 
newspaper. 

4. The Complainant, Tyrone Clark, is black. 

5. On February 5, 1991, the Complainant was looking for housing for himself and his family when he 
saw the Respondent's advertisement for her rental house. 

6. The Complainant telephoned the Respondent and inquired about the rental house. The Respondent 
directed the Complainant to view the house and to call her back if he was still interested in renting 
the house after he had seen it. 

7. The Complainant and his family went to see the house. He called the Respondent back and told her 
he was interested in the house. 

8. The Respondent asked the Complainant some preliminary questions about his family and his work. 
The Respondent then asked the Complainant if he was "colored." When the Complainant responded 
that he was black, the Respondent told him that she did not rent to "coloreds." The Respondent told 
the Complainant that the neighbors would not like him there. Then the Respondent refused to rent 
her house to the Complainant. 

9. After the Respondent refused to rent the house to the Complainant, he contacted the High Point 
Human Relations Commission to complain about housing discrimination. 

10. William Evans, a fair housing specialist with the High Point Human Relations Commission, 
telephoned the Respondent to discuss the matter with her. The Respondent told Mr. Evans that she 
did not rent to "coloreds"; that they would ruin the property and would not pay their rent. The 
Respondent also told Mr. Evans that she did not want to rent to "coloreds" in that neighborhood 
because the neighbors would be displeased with her. The Respondent told Mr. Evans that she did 
not like an outside source interfering in her affairs and her business. She also told Mr. Evans that 
she understood the fair housing law, but she did not care what it said - she was not going to rent her 
house to "colored" people. 

1 1 . After Mr. Evans' conversations with the Respondent, the Complainant filed a housing discrimination 
complaint against the Respondent with the North Carolina Human Relations Commission (hereinafter 
"Commission"). 

12. The Commission's investigator, Carl Ross, interviewed the Respondent on several occasions. The 
Respondent told Mr. Ross that it would have been a disaster if she had rented her house to a black 
person in that neighborhood. The Respondent said that she considered the people who lived in that 
neighborhood to be her friends, and she would have betrayed their trust if she had rented to a 
"colored" person there. 

13. The Respondent told Mr. Ross that she had rented her other house to a black family before, and that 
they had too many people living in the house and they did not pay their rent. The Respondent told 
Mr. Ross that she would not rent to black tenants again. The Respondent told Mr. Ross that she 
understood the fair housing act. 

14. After the Complainant filed his complaint with the state Commission, the Respondent called him twice 



1288 8:13 NORTH CAROLINA REGISTER October 1, 1993 



CONTESTED CASE DECISIONS 



at home and told him that he would not have wanted to live in the 2001 Rotary Drive neighborhood 
because the neighbors would not have wanted him there. The Respondent tried to convince the 
Complainant to withdraw his complaint. 

15. The Complainant experienced humiliation, embarrassment, emotional distress, and loss of civil rights 
as a consequence of the Respondent's actions. 

16. The Complainant testified that the Respondent's statements made him feel cheated and degraded, and 
that he was upset by the incidents. He was ashamed that as his family's breadwinner, he was not able 
to provide them with desirable housing. 

16. The Complainant and his family were disappointed by not getting the Rotary Drive house, which had 
several features they considered particularly desirable (including close proximity to work, a place to 
park the Complainant's bus, a large backyard where the Complainant's daughter could play, and a 
location away from areas with drug traffic.) 

17. The Complainant was embarrassed about having to tell his young daughter the reason why the family 
was not able to live in the Respondent's rental house because he felt that the truth might cause her 
to experience racial stigma. 

18. The experience has made the Complainant concerned that he may be discriminated against in similar 
situations in the future. The Complainant testified that he is still upset by this experience, and that 
he will never forget it. 

19. The Respondent is not currently in good physical health. Her poor physical health has resulted in 
some diminished mental capacity. She has suffered several strokes which have resulted in dementia. 

Dementia was described by Dr. Richard Orr, Jr. as a "loss of cognitive function - that is, the ability 
of being able to reason, loss of judgment, sometimes difficulty with calculation." 

21. Dr. Orr was not the Respondent's physician in February, 1991. Dr. Orr admitted that he was not 
aware of the Respondent's daily routines, her personal affairs, or her business affairs either now or 
in February, 1991. Dr. Orr was not able to give any examples of things the Respondent has done 
that show that she has any impaired judgment. 

The Respondent was first seen by Dr. Chester C. Haworth, a neurologist, in November, 1992. 
Although Dr. Haworth was of the opinion that the Respondent's judgment was impaired, his opinion 
in this regard is contradicted by tests he administered. Dr. Haworth acknowledged that the tests he 
administered indicated that the Respondent's judgment is normal and that her orientation is also 
normal. 

23. Despite her dementia, the Respondent was managing her rental properties, including collecting rent, 
seeing to repairs, and selecting tenants, at the time the Complainant expressed his desire to rent the 
Rotary Drive house. 

24. The Respondent has now voluntarily executed a durable power of attorney to her daughter, Dixie 
Wilson Klemme. 

Based on the foregoing Findings of Fact, the undersigned Administrative Law Judge makes the 
following: 

CONCLUSIONS OF LAW 

1. Pursuant to the provisions of North Carolina General Statutes section 41 A-4(a)(l), it is illegal for a 

person to refuse to engage in a real estate transaction on the account of the person's race. 



8:13 NORTH CAROLINA REGISTER October 1, 1993 1289 



CONTESTED CASE DECISIONS 



2. The Respondent refused to rent her house to the Complainant, stating that she did not rent to 
"coloreds." 

3. The Respondent's refusal to rent to the Complainant because of his race was a violation of North 
Carolina General Statutes section 41A-4(a)(l). 

3. North Carolina General Statutes section 41A-4(a)(6) prohibits a person from making a statement 
which indicates directly or indirectly an intent to discriminate on the basis of race in a real estate 
transaction. 

4. The Respondent told the complainant that she did not rent to "coloreds" and that the neighbors in the 
vicinity of her rental house would not want the complainant living there. These statements directly 
indicated the Respondent's intent to discriminate in a real estate transaction, and they constituted 
violations of North Carolina General Statutes section 41A-4(a)(6). 

5. North Carolina General Statutes section 41A-7(1)(3) provides that the North Carolina Human 
Relations Commission may order a respondent to pay compensatory damages to a complainant. 
Compensatory damages in a State Fair Housing Act case may include compensation for humiliation, 
embarrassment, emotional distress, or loss of civil rights suffered by a complainant as a result of the 
unlawful discriminatory housing act. 

6. In this case, the evidence shows that the Complainant suffered significant humiliation, embarrassment, 
and emotional distress as a result of the Respondent's blatant refusal to rent the house on Rotary 
Drive to him because of his race. 

7. North Carolina General Statutes section 41 A-7(l)(3) also provides for the assessment of a civil penalty 
of up to $10,000 against a respondent for a first violation of the Fair Housing Act. 

8. Among the factors that the Commission may consider in deciding whether, and how much, to assess 
as a civil penalty are the respondent's intent to discriminate, whether the respondent acted with 
callous disregard for the complainant's rights, whether the respondent acted with knowledge that her 
actions violated the law, the deterrent effect of a civil penalty, the extent to which a civil penalty will 
adequately serve to punish the respondent, and the extent to which the civil penalty will vindicate the 
public's interest in assuring fair housing. 

9. In this case, the Respondent's refusal to rent to the Complainant because of race was blatant. The 
Respondent did so knowing that her actions violated the law. Her racial statements directly to the 
Complainant were made with callous disregard for his rights and feelings. The Respondent 
demonstrated her disregard and contempt for the State Fair Housing Act in her statements to the 
investigators. 

10. It is unclear, however, from the record whether, due to her dementia, the Respondent currently has 
the capacity to understand that any civil penalty imposed in this matter would be in the nature of 
punishment to her for actions taken in this case. 

1 1 . Furthermore, since the Respondent's affairs are now being handled by her daughter, any penalty 
imposed to deter future conduct by the Respondent would be a vain and useless act. 

12. The Petitioner has failed to establish how the imposition of a substantial civil penalty in this case will 
serve as a deterrent to either the Respondent or other similarly situated property owners. 

13. There is no record of previous violations, so the Respondent is subject to a maximum penalty of 
$10,000. 

14. The Respondent has the financial resources to pay a civil penalty. 



1290 8:13 NORTH CAROLINA REGISTER October 1, 1993 



CONTESTED CASE DECISIONS 



PROPOSAL FOR DECISION 

The North Carolina Human Relations Commission will make the Final Decision in this contested case. 
It is recommended that the Commission adopt the Findings of Fact and Conclusions of Law set forth above 
and: 

1 . Order the Respondent to pay the Complainant the sum of $2000 in compensatory damages; 

2. Assess a civil penalty against the Respondent in the amount of $1000. 

ORDER 

It is hereby ordered that the agency serve a copy of the Final Decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General 
Statutes section 150B-36(b). 

NOTICE 

Before the Commission makes the FINAL DECISION, it is required by North Carolina General Statutes 
section 150B-36(a) to give each party an opportunity to file exceptions to this PROPOSAL FOR DECISION, and 
to present written arguments to those in the agency who will make the final decision. 

The agency is required by North Carolina General Statutes section 150B-36(b)to serve a copy of the 
Final Decision on all parties and to furnish a copy to the Parties' attorney of record. 

This the 7th day of September, 1993. 



Brenda B. Becton 
Administrative Law Judge 



8:13 NORTH CAROLINA REGISTER October 1, 1993 1291 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF ORANGE 



IN THE OFFICE OF 
ADMINISTRATIVE HEARINGS 

92 OSP 1715 



ROLAND W. HOLDEN, 

Petitioner, 



UNIVERSITY OF NORTH CAROLINA AT 
CHAPEL HILL, 

Respondent. 



RECOMMENDED DECISION 



The Petitioner initiated this contested case on December 1, 1992, in order to appeal the August 6, 
1992 decision of the Respondent University to separate him from employment as a Painter with the Physical 
Plant at the University of North Carolina at Chapel Hill (UNC-CH). 

The Petitioner contends that the University lacked just cause for dismissal and discriminated against 
him on the basis of his handicapping condition. 

The Respondent contends that the Petitioner was separated for personal misconduct, not being truthful 
about the reasons for his absence from work on July 6 & 7, 1992. 

This matter was heard before Brenda B. Becton, Administrative Law Judge, on April 29, 1993, in 
Raleigh, North Carolina. At the conclusion of the hearing, the parties were afforded an opportunity to 
submit written submissions which were filed on July 15, 1993. 

APPEARANCES 

Petitioner: J. Kirk Osborn, Attorney, Chapel Hill, North Carolina. 

Respondent: Anne J. Brown, Associate Attorney General, N.C. Department of Justice, Raleigh, 

North Carolina. 

ISSUES 

1 . Whether the Respondent had just cause to dismiss the Petitioner on the basis of personal misconduct. 

2. Whether the Respondent discriminated against the Petitioner on the basis of his handicap. 

EXHD3ITS 

The exhibits listing was omitted from this publication. If you would like a copy of the exhibits listing, 
please contact the Office of Administrative Hearings, P.O. Drawer 27447, Raleigh, NC 27611-7447, (919) 
733-2678. 

FINDINGS OF FACT 

From official documents in the file, sworn testimony of the witnesses, and other competent and 
admissible evidence, it is found as a fact that: 



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CONTESTED CASE DECISIONS 



1. The Petitioner, Roland Whitfield Holden, Jr., was first employed by the Respondent in September, 
1978. 

2. The Petitioner is fifty-eight years old, born September 21, 1934. 

3. The Petitioner started work for the Respondent as a painter in 1978 in Shop 513. He was there for 
five years under the supervision Mr. Bernice Clemments. Then the Petitioner was transferred to the 
Department of Housing under Mr. James Neal and stayed there for several years. He transferred 
back to Shop 513 and was supervised by Mr. Blaine Custer for five years. Mr. Malcolm Seldon then 
supervised him for eight or nine months. Mr. Fred Mitchell became his supervisor after Mr. Seldon. 

4. The Petitioner was employed as a painter in the Respondent's Small Jobs Shop under the supervision 
of Mr. Mitchell from March, 1992 through the date of his discharge on August 6, 1992. 

5. The Petitioner was dismissed from employment as a painter on August 6, 1992, for alleged personal 
misconduct. 

6. The Petitioner is an alcoholic and when he begins to drink, he cannot control his drinking or stop 
drinking without help. 

7. If the Petitioner went to work while under the influence of alcohol, he would be subject to dismissal 
for misconduct. 

8. On Sunday, July 5, 1992, the Petitioner went to the Emergency Room, suffering from symptoms of 
alcoholism. Before he went, he called his supervisor, Mr. Mitchell, to get permission to be absent 
from work on July 6, 1992. 

9. When the Petitioner spoke with Mr. Mitchell on July 5, 1992, the reason he gave for wanting time 
off was so that he could make arrangements to get his ailing 86 year old mother into a rest home. 

10. The Petitioner was drinking when he called Mr. Mitchell, but he did not make Mr. Mitchell aware 
of this fact. 

11. After the Petitioner arrived at the Durham County Genera] Regional Hospital emergency room, his 
treatment was monitored by Tom Giduz, M.D. 

12. Dr. Giduz offered the Petitioner admission to Oakleigh while he was at the hospital, but the Petitioner 
elected to go home and take the medications that had been prescribed for him that night, as an 
outpatient. 

11. The Petitioner telephoned Mr. Mitchell again on Monday morning, July 6, 1992, to request leave in 
order to take his mother to the doctor. 

12. Mr. Mitchell telephoned the Petitioner at his home on Monday afternoon, July 6, 1992. At that time 
the Petitioner informed Mr. Mitchell that he had not taken his mother to a rest home nor to a doctor; 
he had not even seen his mother. Mr. Mitchell asked him why he needed to be off from work and 
the Petitioner stated that he was just worried about his mother. Mr. Mitchell informed the Petitioner 
that he was not satisfied with the reasons the Petitioner gave him for his absence and scheduled a 
meeting with the Petitioner for Tuesday morning, July 7, 1992, at 9:00 A.M. to discuss the 
Petitioner's reason for being absent. 

13. The Petitioner telephoned Mr. Mitchell at the shop on Tuesday morning, July 7, 1992, and told Mr. 
Mitchell that he was not feeling good and was unable to come to the meeting. Mr. Mitchell asked 
him what was wrong and the Petitioner told Mr. Mitchell that he still had a drinking problem. 



8:13 NORTH CAROLINA REGISTER October 1, 1993 1293 



CONTESTED CASE DECISIONS 



14. Mr. Mitchell testified that he considered the Petitioner's not telling him that he was drinking when 
he called on July 5 and 6 to request leave to be deceitful and such actions were considered to be 
misconduct. As a result, Mr. Mitchell decided to recommend that the Petitioner be separated from 
employment with the Respondent. 

15. Mr. Mitchell consulted with his supervisor, Bruce Jones, prior to proceeding with the Petitioner's 
termination. 

16. Mr. Jones testified that the Petitioner telephoned him on July 6, 1992 and said that he was in trouble, 
that he had not been honest with his supervisor in stating the reasons for being away from work, and 
that he was drinking again. The Petitioner wanted Mr. Jones to advise him what to do. 

17. Mr. Herbert Paul is the Director of the Physical Plant at UNC-CH and he approved Mr. Mitchell's 
recommendation that the Petitioner be separated because, in his opinion, the Petitioner had engaged 
in personal misconduct. 

18. Mr. Paul testified that he did not recommend or approve any adverse personnel action against the 
Petitioner based upon his handicap. 

19. Mr. Paul instigated a pilot employee assistance program in the Physical Plant in 1987 in response to 
a supervisor's approaching him and stating that he has a problem in the workplace with some 
drinking. 

20. At the end of 1989, Mr. Paul personally talked with the Petitioner about him getting help with his 

drinking problem. Mr. Paul telephoned Tern.' Hall, an alcoholic counsellor with the Employee 
Assistance Program, to get assistance for the Petitioner. 

21. Mr. James MacFarquhar was employed at the Respondent's Physical Plant as the Associate Director 
for Building and Grounds. 

22. Mr. MacFarquhar approved the action of dismissing the Petitioner. 

23. Mr. MacFarquhar testified that he did not approve any adverse personnel action against the Petitioner 
because of his handicap. 

24. Mr. Mitchell set up a pre-dismissal conference with the Petitioner for July 9, 1992, and called the 
Petitioner at home during the afternoon of July 7, 1992 in order to inform the Petitioner of the pre- 
dismissal conference. However, when the Petitioner told Mr. Mitchell that he was seeking treatment 
for his drinking at Oakleigh, an alcohol treatment center, Mr. Mitchell did not mention the pre- 
dismissal conference. 

25. The Petitioner presented himself at Oakleigh for admission on July 7, 1992 and was admitted under 
Dr. Giduz's service. 

26. Mr. Mitchell telephoned Oakleigh to see if the Petitioner had been admitted. The Petitioner's doctor, 
pursuant to authorization from the Petitioner, called Mr. Mitchell to confirm that the Petitioner had 
been admitted for treatment. 

27. On Saturday, July 11, 1992, the Petitioner called Mr. Mitchell at home and informed him that he 
could return to work on Tuesday. July 14, 1992, and that the Petitioner wanted to bring a doctor's 
excuse to Mr. Mitchell on Monday, July 13, 1992. Mr. Mitchell told the Petitioner that it would be 
fine to bring his excuse on Monday. 

28. The Petitioner took his doctor's excuse to Mr. Mitchell on Monday and returned to work on Tuesday, 
July 14. 1992. 



1294 8:13 NORTH CAROLINA REGISTER October 1, 1993 



CONTESTED CASE DECISIONS 



29. As of July 5, 1992, the Petitioner had accrued approximately 57 hours of sick leave and 225 hours 
of vacation leave which was sufficient to cover the time he missed from work. 

30. The Petitioner worked continuously for the Respondent from July 14, 1992 to August 5, 1992, 
without ever being informed that Mr. Mitchell had recommended that he be terminated as a result of 
his conduct in obtaining time off from work in July. 

3 1 . Mr. Mitchell notified the Petitioner of his pre-dismissal conference by handing him a hand-written 
note sometime between 9:00 A.M. and 11:00 A.M. on August 5, 1992. The note informed the 
Petitioner that the conference was scheduled for the same day at 3:30 P.M. because of the Petitioner's 
alleged "misconduct on reason to be absent from work on July 6 and 7, 1992." 

32. The Petitioner's pre-dismissal conference was conducted at the Kenan Center with Mr. Drake 
Maynard, the Director of Human Resources Administration for the Respondent, and Mr. Mitchell. 

33. Mr. Mitchell testified that during the pre-dismissal conference, the Petitioner admitted that he had 
been drinking, that he had not been truthful about the reasons he had asked to be off, and he said he 
was sorry that he had been untruthful. 

34. The Petitioner also told Mr. Mitchell and Mr. Maynard that he was ashamed or embarrassed about 
his drinking and that is why he did not disclose to Mr. Mitchell that he had been drinking. 

35. The Petitioner went home after the pre-dismissal conference which lasted approximately one hour. 

36. Mr. Mitchell testified that he considered the remarks that the Petitioner made during the pre-dismissal 
conference, but nothing the Petitioner said was sufficient to make him change his mind regarding his 
decision to recommend dismissal. 

37. On August 6, 1992, Mr. Mitchell notified the Petitioner at work that he was being discharged for 
persona] misconduct on the basis that he had intentionally deceived Mr. Mitchell as to his reasons for 
wanting to be excused from work on July 6 and 7, 1992. 

38. Mr. Mitchell considered it significant that the Petitioner had received a final written warning for 
misconduct on December 9, 1991 for conduct very similar to that which occurred on July 5 and 6, 
1992. Mr. Mitchell felt that as a result of his previous warning, the Petitioner should have been 
aware of the seriousness of deceiving his supervisor about the reasons he needed to be off from work. 

39. Mr. Mitchell testified that he did not discriminate against the Petitioner or recommend any adverse 
personnel action against the Petitioner on the grounds that the Petitioner may be an alcoholic. 

40. The Petitioner appealed his dismissal by filing for a Step 1 Grievance Hearing on August 14, 1992. 
Pursuant to this filing, Mr. Mitchell was requested to explain why the Petitioner was being terminated 
in August, 1992, for conduct which had occurred in July. 

41. Mr. Mitchell responded to the request for an explanation on August 20, 1992, stating that the delay 
was caused by the Department of Human Resources needing sufficient time to determine if the 
American Disabilities Act applied to this matter. 

42. Mr. Maynard testified that the delay in scheduling the Petitioner's pre-dismissal conference was 
caused by the Respondent's inability to get approval for the dismissal from all the required persons 
during the summer when many employees are on vacation. 

43. On August 25, 1992, the Petitioner was notified of Mr. Mitchell's response and was given ten days 
within which to either accept his dismissal or request a Step 2 Hearing. 



8:13 NORTH CAROLINA REGISTER October 1, 1993 1295 



CONTESTED CASE DECISIONS 



44. The Petitioner requested a Step 2 Grievance Hearing. 

45. The Petitioner's Step 2 review was conducted by Mr. Jones who determined that the Petitioner had 
misinformed his supervisor about the reasons for his unscheduled absences from work and he was 
unable to offer any legitimate excuse other than he had been drinking. 

46. Mr. Jones upheld the Petitioner's termination. 

47. Mr. Jones testified that he did not advocate any adverse employment action against the Petitioner 
because of his handicap. 

48. By letter dated September 18, 1992, Mr. Jones notified the Petitioner that he had found no basis for 
the Petitioner's claim of unjust discharge. The Petitioner was informed that he had 15 calendar days 
to file for a Step 3 Grievance Hearing. 

49. The Petitioner requested a Step 3 hearing. 

50. In a letter dated September 29, 1992, Mr. William A. Campbell, Chairman of the Staff Grievance 
Committee, informed the Petitioner that his Step 3 Grievance was being dismissed because the 
Petitioner had indicated his intention to abandon the grievance process by filing a complaint with the 
Equal Employment Opportunity Commission on August 20, 1992. 

51. Performance reviews for the Petitioner contained in his personnel file show the following: Annual 
Performance Rating for period ending June 24, 1992— \fery Good; Performance rating for period from 
July 1, 1991 through November 15, 1991— \fery Good; Annual performance rating for period ending 
June 11, 1991— Exceeds Expectations; Annual Performance rating for period ending July 31, 1990— 
Meets Expectations; Annual Performance rating for period ending February, 1989— Meets 
expectations; Annual Performance rating for period ending November 7, 1989— Exceeds Expectations; 
Annual Performance rating for period ending February, 1988— Fully Adequate; Annual Performance 
rating for period ending February 28, 1981— Fully Adequate; and Annual Performance rating for 
period ending February, 1980— Fully Adequate. 

52. Mr. William Browning worked at the Respondent's Physical Plant for approximately five years. Mr. 
Browning worked with the Petitioner during that time and rated him a good worker, especially in the 
area of mixing and matching paints. 

53. Alcoholism is commonly associated with depression and the Petitioner suffers from depression. 

54. Dr. Giduz expressed the opinion that it is common for an alcoholic to make statement of his intentions 
to do a future act but be unable to do so because of later drinking. It is also typical for an alcoholic 
to feel ashamed of his drinking problem. 

55. When Dr. Giduz saw the Petitioner on July 22, 1992, the Petitioner did not appear to be intoxicated. 

56. Ms. Mary Healy, a counselor in the Respondent's Human Resources Counselling Service, had some 
concerns about whether the Petitioner's actions in this case could be classified as job performance 
rather than misconduct as well as whether the Americans with Disabilities Act ("ADA") applied. 

57. Mr. Maynard is familiar with the ADA and it is his understanding that a person who is a recovering 
alcoholic who has begun to abstain and is continuing to try to abstain from using alcohol is considered 
to be handicapped under the ADA. 

58. Mr. Maynard did not explore the issue of the Petitioner's alcoholism with the Petitioner during his 
pre-dismissal conference. 



1296 8:13 NORTH CAROLINA REGISTER October 1, 1993 



CONTESTED CASE DECISIONS 



Based on the foregoing Findings of Fact, the undersigned Administrative Law Judge makes the 
following: 

CONCLUSIONS OF LAW 

1. The Petitioner was a permanent State employee at the time of his dismissal. 

2. North Carolina General Statutes section 126-35 provides, in pertinent part, that no permanent 
employee subject to the State Personnel Act shall be discharged, suspended or reduced in pay or 
position, except for just cause. In cases of such disciplinary action, the employee shall, before the 
action is taken, be furnished with a statement in writing setting forth in numerical order the specific 
acts or omissions that are the reasons for the disciplinary action and the employee's appeal rights. 

3. Where just cause is an issue, the Respondent bears the ultimate burden of persuasion. 

4. A permanent state employee may be dismissed for inadequate performance of duties or for personal 
conduct that is detrimental to State service. Leiphart v. N.C. School of Arts , 80 N.C. App. 339, 342 
S.E.2d 914 (1986). Prior to dismissal for cause related to job performance, a permanent state 
employee is entitled to three separate warnings that his/her performance is unsatisfactory. Jones v. 
Dept. of Human Resources , 300 N.C. 687, 268 S.E.2d 500 (1980). However, an employee 
discharged for personal misconduct is not entitled to prior progressive warnings because personal 
misconduct discipline is imposed for actions for which no reasonable person should expect to receive 
prior warning. Office of State Personnel, Personnel Manual , pp. 9-3, 9-8.3. 

5. The Petitioner suffers from alcoholism. 

6. The Petitioner was otherwise qualified for his employment with the Respondent. 

7. Alcoholism is a disease, a disability and a handicap and, therefore, protected under the Rehabilitation 
Act of 1973, the American Disabilities Act of 1990, and North Carolina General Statutes. 29 U.S.C. 
§§701 et seq.; 42 U.S.C. §§12101 et seq.; N.C. Gen. Stat. §§126-36, 143-422.2, 168A-1 et seq. 
(1985). 

8. To the extent that the provisions under North Carolina law provide less protection to handicapped 
individuals than does the American Disabilities Act of 1990, those provisions provide no defense to 
an employer who fails to meet the higher standard required by the ADA. 29 CFR pt 1630, app, 56 
Fed Reg 35726, 35740 (July 26, 1991); HR Rep No. 485, pt 2, 101st Cong, 2d Sess 135 (1990); HR 
Rep No. 485, pt 3, 101st Cong, 2d Sess 31 (1990). 

9. The Respondent denies that the Petitioner was dismissed because he is an alcoholic. Instead, the 
Respondent contends that the Petitioner was dismissed because he allegedly lied about his reason for 
wanting leave, that is, he said he needed time off to arrange care for his ailing mother rather than 
informing his supervisor that he was unable to report to work because he was drunk. 

10. The Respondent contends that the Petitioner's allegedly lying about the reason he wanted leave is 
personal misconduct of the type that justifies termination from employment. 

1 1 . Generally speaking, personal conduct of the type that would subject one to dismissal is conduct that 
is so egregious that no reasonable person would expect to receive a warning about such conduct prior 
to being subjected to disciplinary action. Not being truthful about one's reason for wanting leave 
when one has adequate leave time available does not fall within the same category of conduct as 
falsifying time sheets by claiming to have worked when one has not done so, or even claiming sick 
leave when one is not ill or attending to someone else who is ill. It is not clear under the 
circumstances of this case that even if the Petitioner had intentionally lied about his reason for 
wanting leave, that his actions were so egregious that they would warrant dismissal without prior 



8:13 NORTH CAROLINA REGISTER October 1, 1993 1297 



CONTESTED CASE DECISIONS 



warnings. 

12. It is not clear whether the Petitioner actually intended to try to deal with his ailing mother's situation 
and could not carry out that intention because of his drinking, or lied about his reason for wanting 
leave because he was too embarrassed to admit that he was drinking. Either scenario was the result 
of conduct that is directly related to his alcoholism. Therefore, although the Respondent contends 
that it did not dismiss the Petitioner because of his alcoholism, dismissing him on the basis of conduct 
caused by his alcoholism is the same thing. Ham v. State of Nevada , 58 FEP Cases 837 (D.Nev. 
1992). 

13. The Respondent further contends that active alcoholism is not covered by either North Carolina's 
handicapped laws or the ADA. However, at the time the Petitioner was actually dismissed, there is 
no evidence that his alcoholism was active. He had recently undergone treatment. He was 
performing his job satisfactorily. He had not been absent since his return back to work. If the 
Respondent had dismissed the Petitioner on July 5, 1992, then he might not have been subject to the 
protections provided by the ADA. But his dismissal did not occur until almost a month later, at 
which time there is no evidence that his alcoholism was active. 

14. Since the Respondent denies discharging the Petitioner because of his handicap, the analysis developed 
in McDonnel Douglas v. Green . 411 U.S. 792, 93 S.Ct. 712, 36 L.Ed. 2d 668 (1978) and Texas 
Department of Community Affairs v. Burdine , 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed. 2d 207 (1981) 
is applicable. Respondent has the burden of articulating a legitimate reason for the termination and 
the Petitioner must prove that the articulated reason is merely a pretext for illegal discrimination. 

15. The Petitioner has met his burden of proving pretext by showing that the Respondent's articulated 
reason, that is. Petitioner's allegedly lying, is in actuality another way of imposing disciplinary action 
for conduct that is caused by the Petitioner's handicap. 

16. The Petitioner was not discharged for just cause. 

17. The Petitioner was denied his right to a step-by-step review of his discharge in an arbitrary and 
capricious manner and without any basis in reason when the Respondent denied the Petitioner his Step 
3 Grievance Hearing because the Petitioner filed a complaint with the Equal Employment Opportunity 
Commission. 

RECOMMENDED DECISION 

The State Personnel Commission will make the Final Decision in this contested case. It is 
recommended that the Commission adopt the Findings of Fact and Conclusions of Law set forth above and 
that: 

1 . The Petitioner be reinstated to a comparable job, paygrade and benefits, retroactive to date of 
discharge and that backpay be awarded to him for this period. 

2. The Petitioner be awarded reasonable attorney's fees, to the extent such fees are consistent with the 
provisions of North Carolina General Statutes section 126-4(11) and 25 NCAC IB .0414. 

ORDER 

It is hereby ordered that the agency serve a copy of the Final Decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General 
Statutes section 150B-36(b). 



1298 8:13 NORTH CAROLINA REGISTER October 1, 1993 



CONTESTED CASE DECISIONS 



NOTICE 

Before the Commission makes the FINAL DECISION, it is required by North Carolina General Statutes 
section 150B-36(a) to give each party an opportunity to file exceptions to this RECOMMENDED DECISION, 
and to present written arguments to those in the agency who will make the final decision. 

The agency is required by North Carolina General Statutes section 150B-36(b) to serve a copy of the 
Final Decision on all parties and to furnish a copy to the Parties' attorney of record. 

This the 30th day of August, 1993. 



Brenda B. Becton 
Administrative Law Judge 



8:13 NORTH CAROLINA REGISTER October 1, 1993 1299 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



IN THE OFFICE OF 
ADMINISTRATIVE HEARINGS 
93 DOJ 0844 



CARL MICHAEL O 'BYRNE 
Petitioner, 



NORTH CAROLINA ALARM SYSTEMS 
LICENSING BOARD 
Respondent. 



PROPOSAL FOR DECISION 



The above captioned case was heard before Administrative Law Judge Dolores Nesnow on August 
24, 1993, in Raleigh, North Carolina. 



For Petitioner: 



For Respondent: 



APPEARANCES 

Edmond W. Caldwell Jr. 

Hafer, McNamara, Caldwell, Carraway, Layton & McElroy, P. A. 

Post Office Box 30518 

Raleigh, North Carolina 27622 

Charles F. McDarris 
Attorney at Law 
Post Office Drawer 2916 
Raleigh, North Carolina 27602 

ISSUE 



Did Respondent, North Carolina Alarm Systems Licensing Board (hereinafter "Board") properly deny 
Petitioner's application for an alarm systems business license? 

FINDINGS OF FACT 

1. The North Carolina Alarm Systems Licensing Board is established pursuant to G.S. 74D to 
administer the licensing for persons engaged in the alarm systems business. 

2. The North Carolina Alarm Systems Licensing Board is governed by Article 3A of Chapter 
150B of the General Statutes. As a matter of policy, the Alarm Systems Licensing Board has elected not to 
hear contested cases. Accordingly, pursuant to G.S. 150B-40(e), the Board applied to the Chief 
Administrative Law Judge for the designation of an administrative law judge to preside at the hearing of this 
contested case. The undersigned was designated. 

3. Petitioner has been "registered" with the Alarm Systems Licensing Board and has over six 
years experience as an employee of alarm companies. 

4. On April 2, 1993, Petitioner delivered a properly completed application for an alarm systems 
license to the offices of the Board in Raleigh. 



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CONTESTED CASE DECISIONS 



5. Petitioner had obtained his electrical contractor's low-voltage license as required and was not 
aware of any deficiencies in his application, or his qualifications for licensure by the Board. 

6. Petitioner was advised, by the salesperson for the local telephone directory Yellow Pages 
advertisement, that the deadline for Petitioner to submit information for an ad to appear in the upcoming issue 
of the telephone directory was April 21, 1993. Petitioner was advised by the telephone book salesperson that 
the telephone books would be distributed between July 1 and July 15 of 1993. On the last day that Petitioner 
could submit an advertisement to the Yellow Pages (April 21, 1993), Petitioner did submit an ad to the Yellow 
Pages. 

7. Petitioner had selected the name of Topline Security Systems, Inc. as the name for his 
proposed business. He was required to select a name for his proposed business when he received his low- 
voltage license from the Electrical Contractors Board because that Board required their license to be issued 
in the name of a company rather than in the name of an individual. Petitioner needed this license to qualify 
for the alarm license. 

8. At the time Petitioner submitted his information to the Yellow Pages directory, he was 
required to provide the address and telephone number that he wanted to have included in the advertisement 
for his proposed business. 

9. A distant relative of Petitioner knew that he was considering opening a new business, and 
informed Petitioner of available office space adjacent to the relative's beauty shop in a small shopping center. 
Petitioner rented that office space for his proposed new business; however, the office space was rented in 
Petitioner's individual name and not in the name of any business. 

10. After Petitioner obtained a telephone number for use in the Yellow Pages advertisement, the 
telephone was activated by the telephone company and Petitioner installed an answering machine on that 
telephone line. On or about the middle of April, and before Petitioner met with Board Investigator Janice 
Moser, Petitioner and Investigator Moser were exchanging telephone calls attempting to set up a mutually 
convenient time for a meeting. During one of these telephone calls. Investigator Moser advised Petitioner that 
he should remove the message from his answering machine that referred to "Topline Security Systems, Inc. " 
Immediately upon being advised to do so by Ms. Moser, Petitioner removed the message from the answering 
machine and replaced it with a message that made no reference whatsoever to any alarm business. Since that 
time, Petitioner has had the telephone line disconnected. During the time that the telephone was connected, 
Petitioner did not receive any calls from potential customers of an alarm systems business. 

1 1 . Petitioner bought some limited alarm equipment for the sole purpose of installing an alarm 
upon his own premises as allowed by law. Petitioner purchased no alarm equipment for the purpose of resale 
or installation of alarm systems governed by G.S. Chapter 74D. 

12. During his interview with Board Investigator Janice Moser on April 23rd, and at all times 
since, Petitioner has been open, straightforward and honest and has willingly provided all information 
requested. 

13. Petitioner has: 

(a) Done no advertising other than the ad in the Yellow Pages; 

(b) Sold no alarm equipment or systems; 

(c) Installed no alarm systems; 

(d) Not employed any personnel to work for his proposed business; and 

(e) Not solicited any potential customers for his proposed new business. 



8:13 NORTH CAROLINA REGISTER October 1, 1993 1301 



CONTESTED CASE DECISIONS 



14. On May 15, 1993, Petitioner's application for an alarm systems business license was 
considered by the Board at its meeting in Nags Head, North Carolina. Petitioner attended the meeting in Nags 
Head which was approximately a seven hour drive from his residence, one-way. At the Board meeting on 
May 15th, Petitioner was advised that the "Screening Committee" had met the day before and decided to defer 
his application until their next meeting in July. When Petitioner asked for the reason for the action of the 
Board, he was advised that the reason was confidential but that the application was delayed for "further 
investigation." 

15. On July 15, 1993, the Board met in Wrightsville Beach, North Carolina. Petitioner and his 
wife attended this meeting which was an approximately five hour drive, one-way, from his residence. At this 
meeting, the Board denied Petitioner's application for an alarm systems business license. 

16. It is clear that the Petitioner understands the importance of the Alarm Systems Licensing Act 
and that the Petitioner will continue to comply with the Act in all respects in the future. 

17. Petitioner did not intend in any way whatsoever to violate G.S. Chapter 74D by any of his 
actions. 

18. Petitioner had no intent whatsoever to operate an alarm systems business prior to the issuance 
to him of a license. 

19. During times prior to Petitioner's application being submitted to the Board, Petitioner was 
a former employee of two current Board members, both of whom attended the May 15th and July 15th 
meetings of the Board. 

20. One of the board members was a member of and attended the Screening Committee meetings 
on May 14 and July 14 where Petitioner's application was considered. 

21. Both board members attended the Board's review of Petitioner's application in closed 
executive session. 

22. Both board members were present and one board member participated in the Board's review 
of Petitioner's application in an open Board meeting. 

23. Immediately prior to the final public vote on Petitioner's application, it was announced that 
those two board members would not be voting on Petitioner's application. 

24. The Board consists of seven members, five of whom were present at the July 15th meeting. 

25. At the July 15, 1993 Board meeting at the time of the final Board vote on Petitioner's 
application, of the five board members who were initially present, two had excused themselves from voting, 
one had departed the meeting and the remaining two voted to deny Petitioner's application. 

Based upon the foregoing Findings of Fact, the undersigned makes the following: 

CONCLUSIONS OF LAW 

1 . The parties are properly before the Office of Administrative Hearings. 

2. Pursuant to General Statute Section 74D-6, the Board may. after compliance with Chapter 
150B of the General Statutes, deny, suspend or revoke a license, registration or permit issued under this 
Chapter if it is determined that the applicant, licensee, registrant or permit holder has violated any provision 
of this Chapter. 

3. G.S. Chapter 74D provides that no person, firm, association or corporation shall engage in 



1302 8:13 NORTH CAROLINA REGISTER October 1, 1993 



CONTESTED CASE DECISIONS 



or hold itself out as engaging in an alarm systems business without first being licensed in accordance with the 
Act. 

4. The Petitioner met the experience and other requirements contained in G.S. Chapter 74D to 
be issued an alarm systems business license. 

5. The actions and activities of the Petitioner, as contained in the Findings of Fact above, were 
activities in preparation for starting up a business while the Petitioner was applying for an alarm systems 
business license. 

6. The activities of Petitioner, as contained in the Findings of Fact above, do not constitute 
"engaging in or holding itself out as engaging in" an alarm systems business. 

7. The Board has not presented sufficient evidence to support the denial of Petitioner's 
application on the grounds that Petitioner was holding himself out as engaging in an alarm systems business 
without a license as required by G.S. 74D-2. 

Based upon the foregoing Conclusions of Law, the undersigned makes the following: 

PROPOSAL FOR DECISION 

1 . The North Carolina Alarm Systems Licensing Board will make the final decision in this 
contested case. 

2. It is proposed that the Board approve Petitioner's application and issue an alarm systems 
business license to Petitioner. 

ORDER 

It is hereby ordered that the agency serve a copy of the final agency decision on the Office of 
Administrative Hearings, Post Office Drawer 27447, Raleigh, North Carolina 2761 1-7447, in accordance with 
North Carolina General Statute 150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions and proposed findings of fact and to present oral and written arguments to the 
agency. G.S. 150B-40(e). At the Administrative Hearing in this matter on August 24, 1993, attorneys for 
the Petitioner and the Respondent agreed to waive the opportunity to file exceptions and proposed findings 
of fact and to waive any notice required prior to the hearing of this matter by the Alarm Systems Licensing 
Board on September 9, 1993 at its regularly scheduled meeting. Neither Petitioner nor Respondent waived 
their right to present written or oral argument. 

A copy of the final agency decision shall be served upon each party personally or by certified mail 
addressed to the party at the latest address given by the party to the agency and a copy shall be furnished to 
the party's attorney of record. G.S. 150B-42(a). 

The agency that will make the final decision in this contested case is the North Carolina Alarm 
Systems Licensing Board. 

This the 8th day of September, 1993. 



Dolores O. Nesnow 
Administrative Law Judge 



8:13 NORTH CAROLINA REGISTER October 1, 1993 1303 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, 
titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major 
department in the North Carolina executive branch of government has been assigned a title number. 
Titles are further broken down into chapters which shall be numerical in order. The other hw, 
subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Auctioneers 


4 


4 


Commerce 


Barber Examiners 


6 


5 


Correction 


Certified Public Accountant Examiners 


8 


6 


Council of State 


Chiropractic Examiners 


10 


7 


Cultural Resources 


General Contractors 


12 


8 


Elections 


Cosmetic Art Examiners 


14 


9 


Governor 


Dental Examiners 


16 


10 


Human Resources 


Dietetics/Nutrition 


17 


11 


Insurance 


Electrical Contractors 


18 


12 


Justice 


Electrolysis 


19 


13 


Labor 


Foresters 


20 


14A 


Crime Control & Public Safety 


Geologists 


21 


15A 


Environment. Health, and Natural 


Hearing Aid Dealers and Fitters 


22 




Resources 


Landscape Architects 


26 


16 


Public Education 


Landscape Contractors 


28 


17 


Revenue 


Marital and Family Therapy 


31 


18 


Secretary' of State 


Medical Examiners 


32 


19A 


Transportation 


Midwifery Joint Committee 


33 


20 


Treasurer 


Mortuary Science 


34 


*21 


Occupational Licensing Boards 


Nursing 


36 


22 


Administrative Procedures 


Nursing Home Administrators 


37 


23 


Community Colleges 


Occupational Therapists 


38 


24 


Independent Agencies 


Opticians 


40 


25 


State Personnel 


Optometry 


42 


26 


Administrative Hearings 


Osteopathic Examination & Reg. (Repealed) 


44 






Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing. Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Practicing Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Speech & Language Pathologists & Audiologists 


64 






Therapeutic Recreation Certification 


65 






Veterinary Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



1304 



8:13 



NORTH CAROLINA REGISTER 



October 1, 1993 



CUMULATIVE INDEX 



CUMULATIVE INDEX 

(April 1993 - March 1994) 

Pages Issue 

1 - 92 1 - April 

93 - 228 2 - April 

229 - 331 3 - May 

332 - 400 4 - May 

401 - 455 5 - June 

456 - 502 6 - June 

503 - 640 7 - July 

641 - 708 8 - July 

709 - 792 9 - August 

793 - 875 10 - August 

876 - 1006 11 - September 

1007 - 1184 12 - September 

1185 - 1307 13 - October 



Unless otherwise identified, page references in this Index are to proposed rules. 



ADMINISTRATION 

Administration's Minimum Criteria, 5 

Low-Level Radioactive Waste Management Authority, 232 

State Employees Combined Campaign, 1008 

ADMINISTRATIVE HEARINGS 

Civil Rights Division, 370 
General, 366 
Rules Division, 367 

AGRICULTURE 

Aquaculture, 1212 
N.C. State Fair, 506 
Plant Industry, 513, 1212 
Standards Division, 1212 
Veterinary Division, 515, 1212 

COMMERCE 

Alcoholic Beverage Control Commission, 408, 711 

Banking Commission, 408, 798 

Cemetery Commission, 810 

Savings Institutions Division: Savings Institutions Commission, 461 

State Ports Authority, 811 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management, 279, 571, 962 

Comprehensive Conservation and Management Plan, 882 

Departmental Rules, 465 

Environmental Management, 210, 556, 658, 797, 893, 1254 

Health Services, 283, 335, 425, 465, 572, 709, 762, 966, 1098 

Marine Fisheries, 28, 568 



8:13 NORTH CAROLINA REGISTER October 1, 1993 1305 



CUMULATIVE INDEX 



Mining: Mineral Resources, 829 

NPDES Permit, 710 

Soil and Water Conservation, 214 

Wildlife Resources Commission, 32, 663, 831, 965, 1255 

Zoological Park, 337 

FINAL DECISION LETTERS 

Voting Rights Act, 4, 407, 460, 795, 880 

GENERAL STATUTES 

Chapter 7A, 1185 
Chapter 150B, 1187 

GOVERNOR7LT. GOVERNOR 

Executive Orders, 1, 93, 229, 332, 401, 456, 641, 793, 876, 1007, 1209 

HUMAN RESOURCES 

Aging, Division of, 815 

Blind, Services for the, 884 

Deaf and Hard of Hearing, Services for the, 650 

Facility Services, 94, 883. 1014, 1215 

Medical Assistance. 25, 414, 553, 712, 888 

Medical Care Commission, 644 

Mental Health, Developmental Disabilities and Substance Abuse Services, 7, 413, 516, 1086, 1217 

Social Services Commission, 237, 733, 1091 

INSURANCE 

Actuarial Services, 555, 657, 1249 

Engineering and Building Codes Division, 1248 

Financial Evaluation Division, 1093 

Life and Health Division, 1094 

Medical Database Commission, 463, 737 

Special Services Division. 1096 

JUSTICE 

Alarm Systems Licensing Board, 761 

Attorney General, Office of the, 28 

Criminal Justice Education and Training Standards Commission, 253 

Criminal Justice Standards Division, 241 

Departmental Rules, 1096 

Private Protective Services Board, 252, 890 

Sheriffs' Education and Training Standards Commission, 738 

LABOR 

OSHA, 97, 231, 278, 892 

LICENSLNG BOARDS 

Architecture, 43 
Cosmetic Art Examiners, 969 
Dental Examiners, State Board of, 763 
Electrolysis Examiners, Board of, 841 
Foresters, Registration for, 674 
Geologists, Board of, 285 
Landscape Architects, 1256 
Medical Examiners, Board of, 591 



1306 8:13 NORTH CAROLINA REGISTER October 1, 1993 



CUMULATIVE INDEX 



Mortuary Science, Board of, 45, 342, 971 

Nursing Home Administrators, 346 

Opticians, Board of, 1261 

Pharmacy, Board of, 47, 354 

Physical Therapy Examiners, 53, 767 

Plumbing, Heating and Fire Sprinkler Contractors, 360 

Practicing Psychologists, Board of, 844 

Real Estate Commission, 53, 364 

Refrigeration Examiners, 1148 

Social Work, Certification Board for, 428 

LIST OF RULES CODIFIED 

List of Rules Codified, 61, 290, 432, 593, 769, 845, 1264 

PUBLIC EDUCATION 

Elementary and Secondary Education, 427, 470 

STATE PERSONNEL 

Office of State Personnel, 286, 972, 1262 

STATE TREASURER 

Retirement Systems, 337, 1146 

TAX REVIEW BOARD 

Orders of Tax Review, 503 

TRANSPORTATION 

Highways, Division of, 669, 836 
Motor Vehicles, Division of, 1145 



8:13 NORTH CAROLINA REGISTER October 1, 1993 1307 



NORTH CAROLINA ADMINISTRATIVE CODE 



The full publication consists of 53 volumes, totaling in excess of 15,000 pages. It is supplemented monthly 
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OFFICE OF ADMINISTRATIVE HEARINGS 

POST OFFICE DRAWER 27447 
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